       I'MPORTANT NOVICE
      NOT TO BE PUBLISHED OPINION




THIS OPINION IS DESIGN4 TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT OF THIS STA TE.
                                                           RENDERED : NOVEMBER 22, 2006
                                                                  NOT TO BE PUBLISHED


                 ,Su~raat fa~r~t~ of ~tr.~~rr
                        2005-SC-0279-MR and 2005-SC-0806-TG


 ROBERT KEITH WELCH                                                           APPELLANT


                         APPEAL FROM FAYETTE CIRCUIT COURT
                          HONORABLE GARY D. PAYNE, JUDGE
                                  2003-CR-00398-002


COMMONWEALTH OF KENTUCKY                                                        APPELLEE


                       MEMORANDUM OPINION OF THE COURT

                                        AFFIRMING



              This appeal is from a judgment based on a jury trial which convicted

Welch of first degree manslaughter, first degree robbery and tampering with physical

evidence. He was sentenced to a total of 20 years in prison .

       The questions presented are was it error to provide an initial aggressor

qualification instruction ; did the trial judge commit error when answering jury questions

without the presence of counsel, Welch and not in open court; was prior bad act

evidence improperly admitted ; was it error to allow evidence about a particular song

and was it used to improperly inflame the jury; and, finally, was it improper to deny the

request for a new trial without an evidentiary hearing .

       Welch and another man were friends . That friendship included the two of them

being involved in producing music together as well as dealing drugs and possibly other
 illegal activities . They needed money to be able to record their music in a professional

 studio and hatched a plan that would get them enough money to record their music.

 They contacted another acquaintance and even though they had just enough money to

 buy a few pounds of marijuana they indicated they wanted to buy ten pounds. The plan

was to then re-sell the marijuana at a significant profit. They thought they could double

their money . At some point, that plan was modified and instead became a plan to rob

the drug dealer, keeping the marijuana and the money for themselves .

        There are various versions of what happened but eventually the drug dealer was

shot three times and killed. One version of the testimony had the drug dealer

attempting to rob Welch and his friend at gunpoint . The defense attempted to show

that Welch shot the drug dealer in order to protect himself or his friend . Another

version had Welch robbing the drug dealer and shooting him when he resisted .

        Welch's friend and another person who provided the initial contact to the drug

dealer each entered pleas of guilty and received ten year sentences on reduced

charges in exchange for their testimony against Welch . He was convicted of first

degree manslaughter, first degree robbery and tampering with physical evidence .

Sentencing resulted in a total of 20 years to serve in the state penitentiary. This appeal

followed .

                 1.   Initial Aggressor Qualification Jury Instructions

       Welch argues that the evidence at trial indicated that the victim initiated the

physical confrontation that led to his death . He asserts that the theory by the

prosecutor that Welch met the victim to obtain marijuana by theft with a loaded weapon

does not establish that Welch was the first to use physical force offensively. He also
  claims that the trial judge erred by giving the jury initial aggressor qualifications . We do

  not agree.

           This issue was preserved for review by objection that was overruled by the trial

 judge. Welch's defense was built around defense of another or self defense .

 Instructions were provided by the trial judge that required the jury to consider whether

 Welch was precluded from those defenses because he was the initial aggressor . The

 defenses and possible preclusion applied to the range of charges including first degree

 manslaughter, second degree manslaughter and reckless homicide that all revolved

 around the killing of the drug dealer.

          The trial judge properly considered the complete circumstances involved in the

 incident. See Stew v. Commonwealth , 608 S .W.2d 371 (Ky. 1980). The testimony

 from the various witnesses directly involved with the incident was conflicting . It was

 possible for the jury to believe Welch was an initial aggressor and it was possible for the

jury to believe he was not. See Commonwealth v. Benham, 816 S.W.2d 186 (Ky.

 1991). The instruction was appropriate given the facts of this case. There was no

error .

                                       11. Jury Questions

          Welch contends that the trial judge denied him due process of law and abridged

his Fifth Amendment right to be present by answering jury questions during the guilt

phase deliberations without consulting either counsel and without Welch being present

and not in open court . We' disagree .

          The jury provided a written question to the trial judge regarding a fact that had

been part of the testimony from one witness . The trial judge responded with the answer

to that factual question . Neither Welch nor his attorney were present and were never
  provided reasonable notice of the question or the answer. There is no question that

 this was improper procedural conduct. RCr 9.74 requires such questions to be

 answered in open court, in the presence of the jury, the defendant and counsel after

 reasonable notice to- the parties. We are obligated, however, to review this error

 through the perspective of harmless error analysis . See RCr 9.24.

          After a discussion with the judge requesting a review of specific testimony, the

 jury indicated it was seeking an answer to a specific factual question disclosed in that

 testimony. Rather then provide the testimony, the trial judge simply provided the

 answer as given by the witness. Welch relies on our decision in Mills v.

 Commonwealth , 44 S.W.3d 366 (Ky. 2001) where we found that it was a serious

 deprivation of a constitutional right when the trial judge in that case provided information

 to a.jury that had not been admitted into evidence. The current situation is vastly

 different .

         The deprivation of having counsel present in Welch's case and other errors

associated with the trial judge giving the answer to the jury does not rise to the level of

a deprivation that cannot be harmless. See Rushen v. Spain, 464 U .S. 114 (1983).

There was no prejudicial effect from the actions of this trial judge. The trial was

fundamentally fair and the error was harmless. RCr 9.24

                                111. Prior Bad Act Evidence

         Welch complains that the trial judge erred by failing to declare a mistrial when

the lead detective testified that "hit a lick" meant "a robbery" and that Welch's friend told

her in a prior interview that the deal with the drug dealer was supposed to be his and

Welch's "last lick ." Welch believes the testimony was inadmissible prior bad act

evidence pursuant to KRE 404. We disagree .
        Throughout the trial, there was a significant amount of testimony concerning the

 slang terms "lick" and "last lick" . Several witnesses defined them as either terms

 describing a drug deal or a robbery. When a detective was discussing an interview with

 Welch's partner and friend, she stated that he had said this was to be the last one.

 When asked if she meant the last "lick", Welch moved for a mistrial because of failure

 to provide notice of prior criminal acts as required by KRE 404(b).

        Because the partner and friend had testified earlier, the trial judge ruled that the

 detective's testimony was proper impeachment evidence and allowed it. The KRE

 404(b) evidence was properly admitted for rebuttal purposes. See Ernst v.

 Commonwealth, 160 S.W .3d 744 (Ky. 2005). There was no error.

                                  IV. Song Title Evidence

        Welch argues that it was error for the trial judge to admit evidence of the title of a

rap song and allow the prosecution to explain the meaning of the song. He also

maintains that the only purpose was to inflame the jury and attempt to demonstrate that

Welch had a propensity for robbery and using intoxicants . He believes that the

prosecution sought to use the testimony to show his state of mind and that he acted in

conformity with this propensity when he killed the victim. We cannot find any error.

       Welch and his friend and partner had written a number of songs and recorded

them. Welch argues that the admission of the song title constitutes evidence of prior

bad acts and that the prosecutor failed to provide notice as required by KRE 404(b).

Welch stipulated to the admission of the song title. The prosecutor read the title to the

jury and stated that the words indicated what the song was about. The mere title in no

way identified Welch as being involved in any prior criminal activity. It did not identify
 Welch at all. The evidence was properly admitted . There was no abuse of discretion.

 See Commonwealth v. En lish , 993 S.W .2d 941 (Ky. 1999) .

                                   V. Motion For New Trial

          Welch claims that the trial judge erred by denying his motion for a new trial

 without an evidentiary hearing . We disagree .

          Welch provided an affidavit indicating that a witness had falsified testimony.

 Welch provided this affidavit to the trial judge and requested a new trial based on newly

 discovered evidence . A proper affidavit requesting a new trial because of newly

discovered evidence requires it to be from the defendant and explain how due diligence

prevented him from having that evidence prior to trial. See Wheeler v. Commonwealth ,

395 S.W .2d 569 (Ky. 1965) . That evidence must be shown to be of such decisive value

that it would, with reasonable certainty, have changed the result or verdict. See id.

         Here, the trial judge found the evidence to be merely cumulative. Absent an

abuse of discretion, we will not substitute our judgment for that of the trial judge. See

Folev v. Commonwealth , 55 S.W.3d 809 (Ky. 2001). There was no need to hold an

evidentiary hearing . There was no error or abuse of discretion by the trial judge.

         Welch received a fundamentally fair trial . He was not denied any state or federal

right.

         The judgment of conviction and resulting sentence is affirmed .

         Graves, Roach, Scott and Wintersheimer, JJ., concur. Minton, J., dissents by

separate opinion and is joined by Lambert, C.J . and McAnulty, J .
COUNSEL FOR APPELLANT :

Euva D. May
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601


COUNSEL FOR APPELLEE :

Gregory D. Stumbo
Attorney General of Kentucky

Susan Roncarti Lenz
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
                                                              RENDERED : NOVEMBER 22, 2006
                                                                     NOT TO BE PUBLISHED


                       ,~Wuyrrutr Caurf Of IftrtifuAv
                                          2005-SC-000279-MR
                                                 AND
                                          2005-SC-000806-TG



    ROBERT KEITH WELCH                                                                  APPELLANT


                             APPEAL FROM FAYETTE CIRCUIT COURT
    V.                        HONORABLE GARY D. PAYNE, JUDGE
                                INDICTMENT NO . 03-CR-00398-002


    COMMONWEALTH OF KENTUCKY                                                             APPELLEE


                           DISSENTING OPINION BY JUSTICE MINTON

                    I agree with the majority that it is possible for a trial judge's ex parte

    contact with a juror to be harmless error.' But I do not agree that the trial judge's ex

    parte communication with this deliberating jury concerning a substantive issue in this

    case can be dismissed as harmless error. So I respectfully dissent .

                    Kentucky Rules of Criminal Procedure (RCr.) 9.74 provides that "[n]o

    information requested by the jury or any juror after the jury has retired for deliberation

shall be given except in open court in the presence of the defendant . . . and the entire

jury, and in the presence of or after reasonable notice to counsel for the parties ."

Despite the unmistakably clear provisions of RCr 9 .74, the trial judge in this case

inexplicably and alarmingly engaged in ex parte communication with the jury on multiple

'        Rushen v. Spain, 464 U.S. 114 (1983) .
occasions. The jury wrote the trial court a note, stating simply that "Willie Allen's

testimony regarding their activity when they left White Castle ." The trial court's written

ex parte response was, "[w]e are finding the tape and the portion of the testimony after

they left White Castle. Is there a particular statement you are looking for? S/ Gary

Payne." The jury then wrote, "[w]as Rob Welch in the car when Willie Allen hid the guns

the first time?" And Judge Payne's written ex parte response was, "[y]es-he was in the

car. S/ Gary Payne." 2

              We apparently have never been confronted with facts like these . But we

have previously condemned violations of RCr 9.74 (and its predecessor) even if the

violations appear to be less egregious than those found in this case. As our

predecessor Court forcefully held:

              It has been recognized since time immemorial, under the
             common law, the federal and our Constitution, that when one
             is charged with a felony the trial must be had in the presence
             of the accused, and that the accused has the right to be
             heard by himself and counsel . The Code provision makes it
             quite plain that if there be disagreement as to evidence-
             which must have existed here, else no reason for the
             request-any elucidation must not be had without notice to
             counsel . The reason is obvious, and particularly applicable
             here, where the witness had given contradictory testimony .
             It is beyond our power to make a rational guess as to the




  Id. In addition, though not argued by Welch, our review of the record shows that the trial
  court also spoke to the jurors in an ex parte manner during deliberation in the penalty phase .
  See Tape 22/2/05NCR/10 A-7, 02:47 :13-02:49:22. Also, another note from the jury
  appears to have gone unanswered by the trial judge.

  See, e.g., Mills v. Commonwealth , 44 S.W.3d 366 (Ky. 2001) (holding that it was reversible
  error for a jury to be permitted to play tapes of evidence in the jury room during delibera-
  tions) ; Lett v. Commonwealth , 284 Ky. 267, 144 S.W.2d 505 (1940) (holding that it was
  reversible error, even absent an explicit showing of prejudice, for a stenographer to read
  portions of the evidence to a jury without the presence of defense counsel).
                effect of the failure to have re-read the contradictory
                evidence .

                I recognize that jurors frequently will have ex parte contact with trial judges

during the course of a trial.5 And I also recognize that such contact will often be

innocuous and, accordingly, will not alter the fundamental fairness of an otherwise

constitutionally acceptable trial . But this case does not involve an innocuous comment .

Instead, the jury's question about whether Welch was in the car when Willie Allen hid

the guns went to the heart of the tampering with physical evidence charge against

Welch.' Yet, instead of declining to answer the questions without first consulting

counsel for both Welch and the Commonwealth, the trial court simply answered,

"[y]es-he was in the car." That answer, though supported by evidence in the record,

constitutes a finding on an issue integral to at least one of the charges against Welch .

Whether there was evidence to support the answer given by the trial judge is irrelevant



   Left, 144 S.W.2d at 509.

   Rushen , 464 U.S. at 118 ("[thhere is scarcely a lengthy trial in which one or more jurors do
   not have occasion to speak to the trial judge about something, whether it relates to a matter
   of personal comfort or to some aspect of the trial.").

  For example, a juror greeting a judge in a courthouse hallway or a jury panel asking the
  judge to arrange for a smoking break or a meal during deliberations would constitute
  harmless error. Indeed, the ex parte contact in Rushen , relied upon by the majority to find
  the trial judge's contact with the jurors in the case at hand to be a mere harmless error, was
  clearly more innocuous than that found in this case because the improper contact in Rushen
  involved only one juror, not the entire panel; and, unlike the case at hand, the trial judge and
  juror in Rushen "did not discuss any fact in controversy or any law applicable to the case ."
  464 U .S. at 121 .

  The jury instruction on tampering with physical evidence required the jury to convict Welch
  only if it found beyond a reasonable doubt that Welch "destroyed, concealed, and/or
  removed physical evidence, which he believed was about to be produced or used in an
  official proceeding, or Willie Wilson Allen, Jr. did so with the Defendant [Welch], intending
  that Willie Wilson Allen, Jr. do so, aiding him; AND . . . [t]hat the Defendant or Willie Wilson
  Allen, Jr. did so with the intent to impair its availability in that official proceeding ."
     under these circumstances because it is the sole province of the jury to decide which

    witnesses) to believe and which to disbelieve . Therefore, because I believe that

    Welch's constitutional rights were violated by the trial judge's ex parte contact with the

    jury concerning substantive issues in this case, I cannot join the majority's opinion,

    which I believe gives short shrift to this alarming issue. Furthermore, the majority's

    conclusion has the effect, desired or not, of approving a trial court's engaging in

    improper ex parte communication with a deliberating jury.

                    In conclusion, I believe the trial court's errors in this case were of more

    than sufficient magnitude to require Welch's conviction to be vacated. As then-Judge

    Cardozo eloquently stated, "[a] criminal, however shocking his crime, is not to answer

    for it with forfeiture of life or liberty till tried and convicted in conformity with law. ,8

    Because Robert Welch's liberty was forfeited in a trial that plainly was not conducted in

    conformity with the law, I respectfully dissent.

                   Lambert, C .J. ; and McAnulty, J., join .




a
      People v. Moran, 158 N.E. 35, 37 (N .Y . 1927).
