                                                     RENDERED : NOVEMBER 22, 2006
                                                     WITHDRAWN : NOVEMBER 1, 2007
                                                       REISSUED : NOVEMBER 1, 2007
                                                                  TO BE PUBLISHED


                         supreme CnVurf of
                                   2005-SC-000279-MR
                                          AND
                                   2005-SC-000806-MR



ROBERT KEITH WELCH                                                          APPELLANT


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


COMMONWEALTH OF KENTUCKY                                                     APPELLEE



                    OPINION OF THE COURT BY JUSTICE MINTON

                              VACATING AND REMANDING

       Robert Keith Welch appeals his convictions for first-degree manslaughter, first-

degree robbery, and tampering with physical evidence . We vacate and remand

because the trial court inexplicably engaged in improper ex parte communication with

the deliberating jury.


                         1. FACTUAL AND PROCEDURAL,HISTORY .

       Welch and his friend, Willie Allen, produced rap CDs. To raise money to further

their rap music venture, they decided to buy $5,000 worth of marijuana and sell it for a

profit. The events leading up to the drug deal are disputed, but Allen and Welch

ultimately drove to a White Castle restaurant to consummate the marijuana purchase .
But while they were there, the person from whom they planned to buy the marijuana

was shot and killed. And Allen and Welch drove away from the White Castle together,

after which Allen allegedly hid at least one gun .

       The grand jury indicted Welch, Allen, and another friend, Stanley King, for

murder, first-degree robbery, and tampering with physical evidence . Allen and King

entered guilty pleas, but Welch's case proceeded to a jury trial. The jury convicted

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

evidence. As the jury recommended, Welch was sentenced to twenty years'

imprisonment for manslaughter, eighteen years' imprisonment for robbery, and one year

of imprisonment for tampering with physical evidence. All three sentences were

ordered to be served concurrently . Welch appeals to this Court as a matter of right.'


                                       II. ANALYSIS .

       Welch raises five issues on appeal. Me contends that his convictions must be

reversed because the trial court (1) answered written questions posed by the

deliberating jury without consulting counsel and Welch, (2) improperly admitted

evidence of prior bad acts, (3) improperly allowed evidence about the title of a particular

rap song, (4) erred by giving the jury an initial aggressor instruction, and (5) erred by

denying his motion for a new trial without conducting an evidentiary hearing .

       We find no error in the trial court's rulings regarding the prior bad acts and rap

song evidence. But we agree with Welch that the trial court's ex parte contact with the

jury requires Welch's convictions to be vacated and the case to be remanded . Because

his convictions are being vacated, Welch's argument regarding the propriety of the trial

   See Ky. Const. § 110(2)(b) .
court's failure to hold a hearing before denying his motion for a new trial is moot. And

although we find problematic the giving of the initial aggressor jury instruction, we

decline to rule definitively on that issue because the evidence on retrial may be

different.

                       A. The Trial Court Improperly Communicated
                          With the Deliberating Jury .

       After retiring to the jury room for deliberations, the jury sent the trial court a

cryptic note that said, "Willie Allen's testimony regarding their activity when they left

White Castle." The trial judge'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, "Was Rob Welch

in the car when Willie Allen hid the guns the first time?" And the trial judge's written

ex parte response sent back to the jury room was "[y]es - he was in the car. S/Gary

Payne ."

       Without doubt, the trial court's final ex parte note was improper. 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 requirements of RCr 9.74, the

trial fudge in this case inexplicably engaged in a written conversation with the jury to the

point of providing substantive information to the jury without involving counsel and the

defendant . This is error. And we must determine whether this can be deemed

harmless error.2


   RCr 9.24.
       We have not dealt with a similar violation of RCr 9.74 in any reported decision.

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

appears to be less egregious than that found in this case. For example, our

predecessor court found reversible error when a court reporter read back portions of

trial testimony for the benefit of the jury outside the presence of the defendant's

counsel . Without endorsing either practice, we deem the trial judge's ex parte

involvement in the jury's deliberation to be more serious and potentially more prejudicial

than the jury's hearing a read-back of trial testimony in the defendant's absence.

       Expected in the course of a jury trial are numerous opportunities for ex parte

conversations between the trial judge and individual jurors. Most of these ex parte

contacts are innocuous because they do not concern issues central to the case, and

they are harmless because the contact does not impugn the fundamental fairness of an

otherwise constitutionally acceptable trial. But this case clearly does not involve an


    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
   deliberations) ; 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) .
   Lett, 144 S.W.2d at 509 ("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 effect of the failure to have re-read the
   contradictory evidence .").
   Rushen v. Spain , 464 U .S. 114, 118, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) ("There 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 likely constitute
innocuous contact . Instead, the jury's question-whether Welch was in the car when

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 summoning

counsel for both Welch and the Commonwealth for consultation, the trial judge simply

answered, "Yes - he was in the car." That answer, though supported by evidence in the

record, constitutes a judicial finding on an issue integral to at least one of the charges

against Welch. Although some ex parte judge-jury contact is unavoidable and

harmless, the ex parte contact in this case is error that cannot be deemed harmless

because the contact involved the jury's deliberation concerning a central issue in the

case.

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

irrelevant under these circumstances because it is the sole province of the jury to

decide which witnesses) to believe and which to disbelieve . So because the trial court

failed to observe the requirements of RCr 9.74 and because Welch's "substantial

rights"8 were violated by the trial judge's ex parte contact with the jury concerning

substantive issues in this case, the error committed by the trial court cannot be deemed



   harmless error. The ex parte contact in Rushen , which deals with the harmless error rule as
   applied to ex parte contact between a judge and a juror, was far more innocuous than the
   ex parte contact found in this case. Specifically, 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 ."
   RCr 9.24.
    so trifling as to be harmless. As 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 the] law."9 Because Robert Welch's liberty was

 forfeited in a trial that was not conducted in conformity with the law, his convictions must

 be vacated.

                              B. There Was No Evidence of Prior Bad
                                 Acts to Necessitate Mistrial.

           A detective testified that Allen had told her in an interview that the transaction

with the drug dealer was intended to be Allen and Welch's "last lick." The detective

testified that "hit a lick" referred to a robbery. Welch contends that the trial court erred in

not declaring a mistrial because the "lick"-related testimony was inadmissible prior bad

act evidence under Kentucky Rules of Evidence (KRE) 404(b).'° In other words, Welch

argues that the reference to a "last lick" left the jury to speculate about how many

previous robberies or drug deals Welch had committed . Welch also argues that the

evidence was improperly admitted because the Commonwealth failed to comply with

the notice requirement contained in KRE 404(c) ." We disagree .

          Allen testified before the detective testified . During Allen's testimony, the

Commonwealth asked Allen if he remembered telling the police that he and Welch had

talked about this planned drug deal/robbery being the "last lick." Allen answered that he

did not remember using the term "last lick" but that he had talked about it being the "last

9
      People v. Moran, 158 N .E . 35, 37 (N .Y. 1927).
10
      KRE 404(b) provides, in relevant part, that "[ejvddence of other crimes, wrongs, or acts is not
      admissible to prove the character of a person in order to show action in conformity
      therewith ."
      KRE 404(c) provides, in relevant part, "[i]n a criminal case, if the prosecution intends to
      introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it
      shall give reasonable pretrial notice to the defendant of its intention to offer such evidence ."
 one ." Welch did not object to this testimony. And there was other testimony referring to

 the slang terms "lick" and "last lick ."

          Obviously, any issue regarding the Commonwealth's failure to provide

 reasonable notice under KRE        404(c) of   its intent to introduce evidence of prior bad acts

is moot since this case is being remanded for further proceedings . And the admission

of this evidence did not necessitate a mistrial. A mistrial is an extraordinary remedy that

should only be used in those situations where an error of such import has been

committed that a litigant's right to a fair and impartial jury would be violated      if a   new trial

were not held . 12 We may reverse a trial court's decision to deny a motion for a mistrial

only if the trial court's decision represents an abuse of discretion. 13

          The evidence relating to "licks" was certainly not so egregious as to have

necessitated a .mistrial . Welch's contention that the evidence constituted improper

impeachment on a collateral matter is unavailing because the evidence could have

been admissible as rebuttal to impeach Allen in that his testimony at trial differed from

his statements to the police .. In any event, even if we assume, for the sake of

argument, that the testimony relating to "licks" was improperly admitted, the admission

of that evidence was not so egregious as to cause us to hold that the trial court abused

its discretion in denying Welch's motion for a mistrial .




12
     Shabazz v. Commonwealth, 153 S ;W .3d 806, 810-11 (Ky. 2005) .
13
     Id. at 811 .
14
     Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005) ("Evidence of collateral criminal
     conduct is admissible for the purpose of rebutting a material contention of the defendant.").
                      C. Reference to the_ Rap Sona Title Was Not Error.

         Welch argues that the trial court erred in admitting evidence of the title of a rap

song and in allowing the prosecution to explain the meaning of the rap song . The rap in

question was entitled, "Hitting Licks, Getting Ripped, and Making Money ." The song

was not played for the jury. The Commonwealth simply stated that the title of the song

accurately reflected its meaning. Welch contends that the only purpose of introducing

this title was to inflame the jury while attempting to demonstrate that Welch had a

-propensity for committing robberies and using intoxicants .

         We reject Welch's argument. The rap song title does not specifically identify

Welch as having engaged in any criminal activity. And we strongly question whether

the admission of the song title actually constituted a prior bad act under KRE 404(b).

But even if we assume for argument purposes that the title was improperly admitted,

that error was undoubtedly harmless given the other evidence presented against

Welch . 15

                   D . Giving Initial Aggressor Instruction Was Questionable .

         Welch, who built his defense around the concepts of self protection or defense of

another, argues that the trial court erred by instructing the jury that the defenses of self-

protection and defense of another were not available to Welch if the jury believed Welch

was the initial aggressor . Welch argues that there was no evidence admitted at trial to

show that he was the initial aggressor in the fatal confrontation at White Castle . Allen,

who provided the only eyewitness testimony about the origins of the deadly


15
     See, e.g., Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006) ("The test for
     harmless error is whether there is any substantial possibility that the outcome of the case
     would have been different without the presence of that error.").
confrontation, testified that the victim pointed a gun at Allen before struggling with

Welch.

         The Commonwealth contends that the initial aggressor instruction was proper

because Allen testified out of a close relationship with Welch. Reasoning by inference,

the Commonwealth contends that the jury could reasonably have believed that Allen

was lying to protect Welch and could have inferred that Welch or Allen was the initial

aggressor, especially in light of the fact that Welch and Allen came to White Castle with

loaded weapons and Allen's testimony that he intended to rob the victim .

         In order to determine if a qualified self-defense instruction, such as the initial

aggressor instruction, is warranted, a trial court must consider the entire circumstances

of the case and must make a determination that there is sufficient evidence to warrant

the initial aggressor instruction . 16 From our review of the record, we question whether

an initial aggressor instruction was proper because the Commonwealth has cited to no

specific evidence showing that Welch or Allen was, in fact, the initial aggressor.

         But we do not need to rule definitively on this issue since Welch's convictions are

being vacated on other grounds . And the evidence on retrial may be different, such that

the giving of an initial aggressor instruction is more (or less) appropriate . Suffice it to

say that the trial court should give an initial aggressor instruction on remand only if such

an instruction is necessary under our holding in Stepp v. Commonwealth .




     Steep v. Commonwealth , 608 S.W.Zd 371, 374 (Ky. 1980) ("It is the whole circumstances
16

     which surround the incident that must be considered by the trial judge in deciding whether
     an instruction on self-defense is proper or whether an instruction on self-defense with
     limitations is proper . We have held that before such qualifying instructions are proper there
     must of course be evidence to justify it. In other words, the trialjudge must find as a matter
     of law that there is sufficient evidence to justify such limitations before instructing the jury.").
                        E. Issue on Motion for a New Trial Is Moot.'7

         Welch contends that the trial court erred by denying his motion for a new trial

without holding a hearing. Since Welch's convictions are being reversed due to the trial

court's improper ex parte contact with the jury, this argument is moot.


                                     Il . CONCLUSION .

         For the foregoing reasons, Robert Keith Welch's manslaughter, robbery, and

tampering with physical evidence convictions are hereby vacated ; and the matter is

remanded to the circuit court for further proceedings consistent with this opinion .

         All sitting. Lambert, C.J. ; Abramson, Cunningham, Noble, and Schroder, JJ.,

concur . Scott, J ., dissents by separate opinion .




     The denial of his motion for a new trial is the subject of Welch's second appeal, Case
17


     No. 2005-SC-000806-MR . Because each appeal involves the same underlying facts, we
     have elected to resolve Case No. 2005-SC-000270-MR and Case No. 2005-SC-000806-MR
     in this combined opinion.


                                             10
COUNSEL FOR APPELLANT:

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


COUNSEL FOR APPELLEE:

Gregory D . Stumbo
Attorney General of Kentucky

Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
                                                 RENDERED : NOVEMBER 1, 2007
                                                            TO BE PUBLISHED


             ,,$ixprsms (nnurf of Rrufurhv
                                2005-SC-000279-MR
                                       AND
                                2005-SC-000806-MR



ROBERT KEITH WELCH                                                        APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                  HONORABLE GARY D . PAYNE, JUDGE
                          NO . 03-CR-000398-002


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                   DISSENTING OPINION BY JUSTICE SCOTT

        I respectfully dissent . Although the trial judge erred by engaging in an ex

parte communication with the jury during the guilt phase deliberations, it was

harmless error. Thus, Robert Welch's conviction and sentence should be

affirmed .

       In dissenting, I concede that the ex parte communication was improper,

but such errors are subject to harmless error analysis . See RCr 9.24 . Under

such analysis, we must therefore disregard the error if it does not affect the

substantial rights of Appellant ; see id., meaning "that if upon a consideration of

the whole case this court does not believe there is a substantial possibility that

the result would have been any different, the irregularity will be held

nonprejudicial ." Brewer v. Commonwealth, 206 S.W .3d 313, 324 (Ky. 2006),

citing Matthews v. Commonwealth, 163 S .W.3d 11, 27 (Ky. 2005).
        In finding reversible error, the majority relies in part on Mills v.

Commonwealth, 44 S .W .3d 366 (Ky. 2001), where this Court found a serious

constitutional violation when the trial judge provided taped statements to a jury

that had not been admitted into evidence . We reasoned that the trial judge

committed an "error of serious constitutional magnitude" because the jury had not

heard the tapes during the trial, and thus the statements were not subject to

adversarial testing . Id. at 372. That is not the case here .

        In this matter, after a discussion with the trial judge requesting a review of

Allen's testimony, the jury indicated it was seeking an answer to a specific factual

question disclosed in that testimony. The trial judge simply provided the

answer-which the jury had already heard when Allen testified under direct and

cross-examination at trial.

       The majority incorrectly characterizes the ex parte communication as a

judicial finding on a central issue in the case . According to the first notes

between the judge and jury,' it was understood that the jury had inquired about

Allen's testimony, not the trial judge's personal opinion . Thus, the trial judge's

response was nothing more than a repeat of that previously admitted testimonial

evidence. Moreover, the error was not prejudicial to Welch because the trial

judge's response was correct as is demonstrated by Allen's testimony.

       In sum, the technical error committed here is not sufficiently serious to warrant

vacating his conviction . See Rushen v. Spain , 464 U.S . 114,104 S.Ct. 453, 78



        ' The jury sent the trial judge a note that said, "Willie Allen's testimony
regarding their activity when they left White Castle." The trial judge's written
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 ."
L.Ed .2d 267 (1983) (holding that an ex parte communication between trial judge

and jury can be harmless error). Accordingly, I dissent.
                   ,$uyrnar C~vurf of ~RtufurhV
                                     2005-SC-000279-MR
                                            AND
                                     2005-SC-000806-MR



ROBERT KEITH WELCH                                                        APPELLANT


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


COMMONWEALTH OF KENTUCKY                                                    APPELLEE



                    ORDER GRANTING PETITION FOR REHEARING,
                    AND WITHDRAWING AN D REISSUING OPINION

       The Petition for Rehearing filed by the Appellant, Robert Keith Welch, is hereby

granted. There shall be no additional briefing.

       The Memorandum Opinion of the Court, rendered herein on November 22, 2006,

is hereby withdrawn ; and the attached Memorandum Opinion is reissued in lieu thereof.

       All sitting . Lambert, C.J . ; Abramson, Cunningham, Minton, Noble, and Schroder,

JJ ., concur . Scott, J., would not have granted the petition .

       ENTERED : November 1, 2007.
