                                                RENDERED: NOVEMBER 2, 2017
                                                           TO BE PUBLISHED




                               2015-SC-000616-MR


TRAVIS JETER                                                           APPELLANT

                       \..
                  ON APPEAL FROM HARDIN CIRCUIT COURT
V.                 HONORABLE KELLY M. EASTON, JUDGE
                             NO. 15-CR-00041


COMMONWEALTH OF KENTUCKY                                                APPELLEE



               OPINION OF THE COURT BY 'JUSTICE HUGHES .

                                    AFFIRMING

 '    Travis Jeter appeals as a matter of right from a judgment of the Hardin

Circuit Court convicting him of robbery in the first degree, first-degree

possession of a controlled substance (cocaine), and use of drug paraphernalia.·

In accord with jury recommendations, the trial court sentenced Jeter as a first-

degree persistent felon to respective prison terms of life, three years, and twelve

months, with these sentences to be served concurrently as a matter of law.

Jeter contends that he is entitled to a new trial for any of three reasons: (1) the

trial court erred by denying Jeter's motion in limine to exclude eyewitness

identification testimony; (2) the trial court abused its discretion by denying

Jeter's last-minute motion for   a continuance; and (3) the trial court abused its
discretion by.denying Jeter's motion to sever the robbery charge from the drug
and   paraphernal~a   charges. Convinced that Jeter has failed to identify

anything warranting the relief he seeks, we affirm the Hardin Circuit Court's

judgment.

                                    RELEVANT FACTS

       The Commonwealth's proof at trial included ·testimony by the robbery

victim, Joyce Perry, a sixty-or-so-year-old Elizabethtown resident who, in

January 2015, ?ad recently retired from her job at the Towne Mall in

Elizabethtown. Perry related that during the evening of January 5 she had

gone to the mall to visit with some of her former   co~workers.   As she was

getting into her car in the mall parking lot around 7:30, a man she did not

know approached her and asked what time the mall closed. For various

reasons the man's question and comments seemed odd to Perry, but she

answered his question.

       As Perry was climbing into. the drive.r's seat of her car, the man suddenly

pushed her toward the.passenger seat and squeezed into the car along with

her. Eventually, after two or three attempts, he managed to close the door. He
                              __;


told her, "This is a holdup!" and demanded her money and her car keys. He

also demanded that Perry climb out of the driver's seat and onto the

passenger's side floorboard. When Perry replied that she had no money, the

man told her, "I can shoot you! I'll kill you!" and continued to try to force Perry

irito the passenger seat. Perry testified that the gear lever and the central

console made it impossible for her to climb into the passenger side of the car,

and so she resisted. She pulled at the man's toboggan-type hat; grabbed his

                                          2
hair, which was styled into loose braids; and also tried to honk the horn. Her

resistance prompted the man to start hitting her in the face.         (


        A struggle ensued, with Perry continuing to try to honk the horn and

then trying to activate the car's alarm with her key fob. The man struck Perry

several more times and eventually succeeded in grabbing her purse. During

the struggle Perry managed at one point to open the front, passenger side door,

which the man then reclosed, and by pressing the buttons on her key fob she

may inadvertently have locked the front, driver's side door, which prompted
                   .                               (
more blows .. She· apparently also caused the trunk to open. Finally, the man

climbed into the back seat and exited through the rear, driver's side door.

Perry w;aited briefly to be sure that he was gone and then went back into the

mall for help.

        Near the end of Perry's ordeal, another mall patron, Jean Albrecht,

·arrived and parked a row behind Perry's car. Albrecht testified that she had

exited her vehicle and started walking toward the mall when she saw the trunk

of Perry's car swing open and at about the same time saw a man emerge from

Perry's car and begin to walk away, toward the Sears end of the mall. She

called to the man to let him know about the trunk. He stopped and turned

toward her, but before she could say anything the trunk closed, and so she just

waved, and the man went on. Albrecht continued into the mall, she testified,

where she had been for just a minute or two when Perry came in calling for

help.




                                         3
          Someone summoned police and emergency medical services, and Perry

 was taken to Hardin Memorial Hospital, where she was found to have suffered

 a broken nose, a .broken eye socket, and a chipped tooth. The eye-socket
                      '
 injury was still being treated at the time of trial, more than eight months after

· the attack. Before she was   take~   to the hospital, Perry told investigators that

 she did not get a good look at her attacker but that she remembered an

 African-American man with long braids under a toboggan hat. She also

 remembered that he was wearing a plaid, hooded shirt; blue jeans; and white

 shoes.

       Albrecht told investigators at the scene that the man she saw walking

 away from (what turned out to be),Perry's car, was a tall, young African-

 American who was wearing a dark toboggan hat and a dark jacket. The

 investigators did not subsequently ask either Perry ot Albrecht to attempt to

 identify Jeter in person or in a photo array.

       Police investigators obtained the mall's security video. The video

 recording of the incident, portions of which the Commonwealth played several

 ti:µies for the jury, captured a man exiting a dark-colored pickup truck and

 approaching Perry's vehicle as she is just getting into it. It shows the man

 forcing his way inside the car and, with some difficulty, closing the. door. Over

 seven minutes, the video shows Perry's passenger door opening, but quickly

 reclosing; Albrecht's arrival; and eventually a man climbing out the back door

of Perry's car. The video depicts the man's brief encounter with Albrecht and

 then Perry leaving her car to enter the mall.

                                            4
           From the mall video, investigators isolated photos of the perpetrator's

    pickup truck and had them shown during local news broadcasts. The former

    . owner of the pickup truck - which had been customized - saw it on television

    arid notified the investigators that he had recently sold it to a woman named

    Karen. "Karen" turned out to be Karen Frazier, the mother of Travis Jeter, with

    whom Jeter lived at the time. An investigator saw the pickup truck parked at

    Frazier's hqme a couple of days after the robbery. 0 An earlier search of Perry's
                                                                                 ,.
                                                     (

    vehicle after the incident had turned up a pair of eyeglasses that did not belong
(
    to Perry. Having used the security video to connect the pickup truck to Jeter,

    the investigators located a recent photo of him; and in the photo he is wearing

    glasses like those found in Perry's car. These facts led to a search warrant for

    the pickup truck and for Frazier's house. During the searches, investigators

    found a man's dark jacket that appeared to be spotted with blood as well as a

    spoon with cocaine residue and the "crack" pipe that gave rise to Jeter's drug

    charges .

          . Investigators submitted the glasses found in Perry's car and the potential

    blood samples from the jacket found in Jeter's room to the state forensic

    laboratory for DNA analysis: At trial, analysts testified that DNA from the

    glasses matched Jeter's DNA at all the sites that could be tested, enough sites

    to yield an astronomically small chance of choosing an individual with that

    profile at random from the relevant population. The DNA from Jeter's jacket

    matched Perry's DNA at all sites, again with an infinitesimal chance of a

    random match.

                                            5
      Jeter maintained an alibi/mistaken-identity defense. Soon after his
                                                                           1

arrest, Jeter told investigators that he spent much of the day of the robbery at

a "crack house" using cocaine and becoming acquainted with a fellow user. He

claimed that at the time of the robbery, he did not have his truck, although he

declined to say who had it. He told the investigators that, hoping to obtain

some money to pay for the cocaine he had already used, to buy more cocaine,

and to take his new friend out to dinner, he had had someone drive him to a

Save-a-Lot, where he hoped to sell some food stamps. By 9:00 that evening,

however, he was reunited with the truck, he admitted, because it was about

then that his mother called him and told him to bring it home.

      Jeter's counsel argued at trial that Jeter's police statement could be

credited because Jeter told the investigators things-that he used cocaine, that

he visited a "crack house," that he attempted to sell food stamps-that a

person was unlikely to admit were they not true. Defense counsel argued that

the Commonwealth's DNA and. other evidence suddenly became far less
                                              '

damning given that the person who used Jeter's truck could also have used

Jeter's jacket, which he found in the truck. As for Jeter's glasses left behind in

Perry's car, they may well have fallen out of the jacket's pocket while it was

being worn by that other person.

      Jeter maintains that one reason the jury rejected his defense is that

Albrecht was allowed to identify Jeter at trial for the ,first time as the African-

American man she saw getting out of Perry's car. Albrecht's in-cou:h

identification of him, Je!er Claims, runs afoul of the United States Supreme

                                          6
                                                      ,-




Court's Neil v. Biggers, 409 U.S. 188 (1972), line of cases, wherein the Supreme

Court has recognized "a due process    ch~ck   on the admission of eyewitness

identification." Perry v. New Hampshire, 565 U.S. 228, 232 (2012) .. The

constitutional violation here, Jeter further contends, cannot be deemed

harmless beyond a reasonable doubt, and so entitles him to a new'trial. We

begin our analysis with this contention.

                                    ANALYSIS

I.   A Witness's Spontaneous In-Court Identification of the Defendant Did
     Not Implicate Biggers.·

      The Supreme Court has held that under certain circumstanc_es the Due

Process Clauses of the United States Constitution bar admission of eyewitness

identification evidence. To make that determination; courts have employed a

two-pronged test. Commonwealth v. Parker, 409 S.W.3d 350, 352 (Ky. 2013)

(noting that; "The determination of whether identification testimony violates a

defendant's due process rights involves a two-step process.") (citations

omitted). The court must determine first whether the identification procedure

was unnecessarily suggestive. Perry, 565 U.S. at 238-39 ("[D]ue process

concerns arise only when law enforcement officers use an identification

procedure that is both suggestive and unnecessary."). If so, the court must

then consider the totality of the circumstances-·the circumstances both at the

time of the witness's initial observations and also at the subsequent

identification-to assess the reliability of the identification. The identification

evidence is to be excluded on due-process grounds only if "improper police



                                         7
conduct created a 'substantial likelihood of misidentification."' Id. (quoting

Biggers, 409 U.S. at 201).

       The United States Supreme Court developed this test in the context of

out-of-court identification procedures, such as police-arranged show-ups, line-

ups, and photo arrays. With several lower federal courts expressing concern

about the suggestiveness of the in-cour_t identification process itself, those

courts have siD:ce split on the question of whether the same test applies to
                            .                                                  .
identifications elicited for the first time in court. See, e.g., Lee v. Foster, 750

F.3d 687 (7th Cir. 2014) (applying the two-part test, but ruling that the

particular in-court proceedings were not unnecess~rily suggestive), United

States v. Hill, 967 F.2d 226, 232 (6th Cir. 1992) ("All of the concerns that

underlie the Biggers analysis, ... are no less applicable when the identification

takes place, for the first time at trial."); but cf United States v. Domina, 784

F.2d 1361, 1368_(9th Cir. 1986) (Acknowledging that in-court identifications

are inherently suggestive, but asserting that-different considerations apply

when the initial identification is in court, since then, "[t]he jury can observe the

witness during the identification process and is able to evaluate the reliability

of the initial identification.").

       Like the Supreme Court's earlier cases in the Biggers line, Perry

9oncerned an allegedly suggestive pre-trial identification. What distinguished

Perry was the fact that the identification was not orchestrated by police

investigators. Instead, it occurred spontaneously when the witness, asked by a

police officer for a description of the person she had seen breaking into cars,

                                          8
called the investigator over to her kitchen window, and identified Perry, who

was standing next to another ·police officer in the parking lot outside, as the

perpetrator. Perry, 565 U.S. at 234.

       Responding to the    def~ndant's   contention that the identification

circumstances amounted to an unduly suggestive show-up, the Supreme Court

emphasized that the due-process check on unnecessarily suggestive

identification procedures is not triggered by suggestiveness per se. That, the

Court explained, would lead to an overly-broad constitutional rule, because

"[m]ost eyewitness identifications involve some element of suggestion. Indeed.,

all in-court identifications do." 565 U.S. at 244. Suggestiveness as such, the

Court noted, and the reliability concerns it raises, are usually matters for jury

resolution in a trial governed by the Sixth Amendment and conduct~d under

the rules of evidence. 565 U.S. at 237. Suggestiveness raises due process

concerns "only when law enforcement officers use an identification procedure

that is both suggestive and unnecessary." 565 U.S. at 238-39. In other words,

despite the acknowledged fallibility of eyewitness identification evidence, 1 that

fallibility "does not, without the taint of improper state conduct, war~ant a due




        1 Jeter refers us to Commonwealth v. Crayton, 21N.E.3d157 (Mass. 2014), in
which the Supreme Court of Massachusetts joined the Supreme Courts of New Jersey
(State v. Henderson, 27 A.3d 872 (N.J. 2011)) and Oregon (State v. Lawson, 291 P.3d
673 (Ore. 2012)), in articulating state law rules m~ant to expand upon the federal due
process requirements and increase the pre-admission scrutiny paid to eyewitness
identification evidence. See also, Nicholas A. Kahn-Fogel, The Promises and Pitfalls of
State Eyewitness Identification Reforms, 104 Ky. L. J. 99 (2015-16) (critichlly surveying
state law attempts-legislative and administrative as well as judicial-to enhance the
reliability of ·eyewitness identification testimony).

                                            9
process rule requiring a trial court to screen such evidt;nce for reliability before

allowing the jury to assess its creditworthiness." 565 U.S. at 245.

      In this case, as noted, although both Perry and Albrecht saw the

perpetrator at the time of the robbery, neither woman provided investigators

with a facial description of that person, or much of a description beyond the

typical race-age...:and-gender, height-and-build, type-of-clothing description. In

fact, Perry told investigators that she did not get a good look at her attacker

and would not be able to identify him.

      After Jeter's arrest, the investigators did not ask either woman to attempt

to identify Jeter through a line-up or a photo array. That lack of pre-trial

testing prompted a motion in limine by Jeter asking the trial court to   dis~llow,


as incompatible with Biggers, i.e., unnecessarily suggestive and unreliable, an

in-court identification by either witness.

      Relying on Northington v. Commonwealth, 459 S.W.3d 404, 410 (Ky. App.

2015), in which a Court of Appeals' panel held that "Biggers does not apply to

first time identifications made in court," (citing Russell v. Commonwealth, 490

S.W.2d 726 (Ky. 1973), and Thompson v. Commonwealth, 2004 WL 2624165

(Ky. 2004)), the trial court rejected Jeter's Biggers argument and ultimately .

denied his motion to disallow in-court identifications by the two women.

Notwithstanding its invocation of Northington, however, the trial court offered

the parties a suppression hearing on the identification issue if either of them

wished to pursue it. At that point, the Commonwealth represented that it had

no intention of asking either Perry or Albrecht to identify Jeter beyond the

                                         10
descriptions of the perpetrator they had given to investigators. Jeter did not

pursue the matter.

      At trial, as noted above, after Albrecht had introduced herself to the jury,

explained what had brought her to the mall that evening, and told the jury that

she parked in the lot behind the mall's food court, the following exchange

occurred with the prosecutor:

      Prosecutor: Was it dark outside? Do you remember?
      Albrecht: It was dark, but where we parked was where the
      streetlight was.
      Prosecutor: So there was some lighting? .
      Albrecht: Yes.
      Prosecutor:. Okay. Did you get out of your vehicle at some point?
      Albrecht: Yes.
      Prosecutor: Did you see anything?
      Albrecht: As I was getting out of my vehicle, I saw a gentleman
      getting out of a vehicle kind of in front of r:q.e.
      Prosecutor: Okay.
      Albrecht: And it was this gentleman right here [pointing at Jeter].
      Prosecutor: It was that gentleman [indicating Jeter]?
      Albrecht: Yes sir.                                  ·
      Prosecutor: Okay. And why did you see ... Did you notice
      anything about the car?
      Albrecht: I was going to tell him that the trunk was open, and I
      hollered, "Hey," at him about the time the0
                                                     trunk was closing. And I
      just waved like this [demonstrating] for him to go on.
      Prosecutor: Okay. Did you see anyorie else get out of the car?
      Albrecht: I did not see anybody else get out of the car until after I
      was in the mall, when a lady came in and said that she was
      mugged.
      Prosecutor: Okay. Now, before today, have I ever showed you any
      pictures of the defendant?
      Albrech.t: No sir.
      Prosecutor: Matter of fact, I told you I couldn't, correct?
      Albrecht: Yes, sir.
      Prosecutor: Has anybody ever showed you any photographs of the
      defendant?
      Albrecht: No.
      Prosecutor: Have you ever seen that man [indicating Jeter] any
      time before today other than that night?
      Albrecht: No.
                                        11
                                          I

        Prosecutor: Are you sure this is him?
        Albrecht: Yes sir.

        Jeter contends that Albrecht's identification of him was not reliable as

measured according to Biggers and asks             us to join the courts that have found
Biggers applicable to all identifications made for the first time in court. We

recently rejected this very argument in Fairley v. Commonwealth, __ S.W.3d

__ , 2016-SC-000021 (Ky. Sept. 28, 2017).2 In any event, Peny makes clear

that Biggers and the other cases in its line do not apply to identifications that

are not the product of state action. State action is not involved when, as here,

a witness volunteers an otherwise untainted identification for which the

prosecutor did not ask.3 Absent the "taint of improper state action," Peny

establishes that the jury and the ordinary rules of trial provided Jeter with all

the process due him for contesting Albrecht's testimony. Thus, on the asserted

due process grounds Jeter is not entitled to relief.

II.   The Trial Court Did Not Abuse its Discretion When it Denied Jeter's
      Continuance Motion.

        Jeter also contends that the trial" court abused its discretion by denying

his motion for a continuance on the morning of trial. In Jeter's view, the trial

court ought to have overlooked Jeter's counsel's noncompliance with the formal



       2 Cf United States v. Correa-Osorio, 784 F.3d 11 (1st Cir. 2015) (noting that,
beyond its strong suggestion that Biggers is not implicated by every in-court
identification, Perry, which did not involve a first-time-in-court identification, did not
resolve the split in _the federal circuit courts over whether Biggers applies-always,
sometimes, never-to that situation).
        3As for the prosecutor's follow-up questions foilowing the spontaneous
identification, they do not implicate the state action suggestiveness concerns
underlying Biggers.

                                              12
                                /
requirements for such a motion and addressed the motion's merits. We

disagree, but need not belabor the point, since in our view the motion lacked ·

·substance as well as proper form.

      Jeter's motion arose in the following context: Following the search of his

residence on January 10, 2015, Jeter was arrested and charged with (among

other things) the robbery of Perry five days earlier. Counsel was appointed for

Jeter the day of his arrest. The Hardin County Grand Jury indicted Jeter on

January 29, 2015. Jeter was arraigned on February 3, 2015, and appointed

counsel appeared with him at the arraignment. Toward the end of March

2015, the trial court held a pre-trial conference, at which it scheduled trial for

September 21, 2015, with a final pre-trial conference on September 15. About

a week before the September pre-trial, the public defender who had

represented Jeter at his arraignment filed motions on Jeter's behalf to sever the

robqery charge from the drug-related charges and to disallow identification
                                                                                     r
testimony by either Perry or Albrecht. At the conclusion of the ·pre-trial

conference, the trial court denied both motions. Three days later, on

September 18, 2015, a second attorney from the Elizabethtown Public

Defender's Office,   M~.   Owens, entered her appearance on behalf of Jeter. On

the morning of trial, at a conference just before the commencement of voir dire,

the trial court reiterated its prior rulings on Jeter's severance and suppression

motions. With respect to the latter, the Court referred to Northington, as noted

above, but expressed its willingness to hold a suppression hearing on the

'eyewitness identification issue if the parties thought that nec·essary. At that

                                          13
time, the Commonwealth disavowed any intention to seek an in-court

identification from either Perry or Albrecht. As the conference was ready to

conclude, Jeter's original counsel, who had been seated with Jeter at the

defense table, presented the court with a continuance motion and

accompanying affidavit that-co-counsel Owens had prepared that morning.

      The motion requests the court "to continue this case," and the affidavit

refers to the several installments of discovery provided by the Commonwealth,

including "phone records subpoenaed by the Comm_onwealth from AT&T

regarding Travis Jeter's phone." The affidavit only identifies an issue regarding

Jeter's AT&T records. According to the affidavit,      ~defense   counsel" believes

that "GPS information is crucial to its theory," but apparently neither the

discovery nor the AT&T employees with whom counsel spoke after receiving the

discovery supplied that GPS information. The affidavit concludes with a

request for a short continuance and asks that the affidavit be sealed until after

the trial so as not to reveal defense strategy.

       Confronted with the motion on the verge of trial, the trial court initially

rejected out-of-hand the unsupported suggestion that the motion to continue

could be considered ex parl.e. 4 At that point, the Commonwealth explained that

an uncertified copy of the AT&T discovery had been supplied to the defense by

September 9, 2015 (followed shortly by a certified copy); disavowed any

intention of introdudng GPS evidence; and contended that phone company



       4Jeter did not challenge the trial court's ruling, and that issue is riot now
before us.

                                            14
records alone were not sufficient to generate the sort of GPS evidence the

defense seemed to have in mind.

      Before attempting to divine what defense counsel had in mind, the trial
                       "
court noted that neither the motion nor the   affidavi~   had been signed so, in

effect, they had not been tendered. Accordingly, the court denied the motions.

At that point, Jeter's initial counsel was willing to sign the motion and did so,

but a few minutes later, at the commencement of voir dire, when the court
                                                           I




asked Ms. Owens if the defense was ready to proceed and she attempted to

renew the motion for continuance, the affidavit remained unsigned. The court

therefore reiterated its denial of the motion, and the voir dire went forward.

      Jeter maintains before us that because attorneys are officers of the court

and under a duty of candor, it does not matter if they do not sign their motiorts

and affidavits. We do not, as the Commonwealth does, understand Jeter to be

arguing that attorneys are above the law. Rather, his argument, appears to be

that inasmuch as attorneys are subject to sanction under the Rules of

Professional Responsibility for misrepresentations in court, any sanctions
                           I

under the civii or criminal rules of procedure for the same misrepresentations

are redundant and can be discarded with respect to counsel. We emph.atically

disagree.

      As the Commonwealth correctly notes, the law that Jeter would have us

jettison begins with Kentucky Rule of Criminal Procedure (RCr) 9.04, which

provides for postponements in criminal cases of hearings and trials. Under the

rule,_ the court may grant such a postponement to either party "upon motion

                                        15
and sufficient cause shown." If, as here, it is the defendant who seeks

postponement "on account of the absence of evidence,'' his motion may only be

made "upon affidavit showing the materiality of the evidence expected to be

obtained, and that due diligence has been used to obtain it."

       An "affidavit," according to Black's Law Dictionary (9th ed. 2009), is "[a]

voluntary declaration of facts written down and sworn to by the declarant

before an officer authorized to administer oaths." Similarly, Kentucky Rule of

Civil Procedure (CR) 43.13(1) defines an affidavit for the purposes of our rules

and statutory proceedings as "a written statement or declaration sworn to or

affirmed before an officer authorized to take depositions by Rule 28." 5 The rule

further provides that "[e]very affidavit shall be subscribed by the affiant; and

the certificate of the officer or person before whom it is made shall be written

separately, following the signature of the affiant, and shall be proof of the time

and manner of the affidavit being made." CR 43.13(2). 6

       Because the affidavit counsel submitted in this case was neither signed

.by the affiant7 nor certified by an authorized person, it plainly did not satisfy

the formal requirements of a motion under RCr 9.04. Not only did the trial




       s Among the persons so authorized by Rule 28 are "a judge ... [and] a notary
public."                             ·                          ·
       6 RCr 13.04 makes the civil rules applicable to criminal proceedings "to the
extent not superseded by or inconsistent with" the criminal rules.
        7 The lack of a signature made it unclear who the affiant was meant to be. The
trial court had the impression that Jeter was the implied affiant. In the court's view,
therefore, the affidavit had the additional defect of alleging facts that the affiant could
not know. Another possibility is that the "defense attorney" the affidavit refers to is-
the affiant, but in that case it is unclear which defense attorney was intended.

                                            16
court not abuse its discretion when it rejected Jeter's motion, given the rule's

mandatory language (a defense motion for delay on account of a lack of

evidence "may be made only upon affidavit"), it had no alternative but to do so.

Cf. Campbell v. Blankenship, 308 Ky. 808, 215 S.W.2d 960 (1948) (holding

under the Civil Code of Practice that an unsubscribed affidavit is void and thus

cannot supply a statutory affidavit requirement); Shafizadeh v. Shafizadeh, 444

S.W.3d 437 (Ky. App. 2012) (holding that a "declaration," because neither

sworn, subscribed, nor certified, did not meet CR 43.13's definition of an .

affidavit, and thus could not satisfy a statutory affidavit requirement).

      Jeter essentially concedes all this but insists, nevertheless, that the

affidavit requirement is superfluous. Judges, after all, are among the persons

authorized to certify affidavits, and when defense counsel-an officer of the

court-makes representations to the judge, he or she is in effect swearing to

the statement. This simplistic approach overlooks important considerations

underlying the rule.

      The affidavit rule serves to assure the court and the Commonwealth that

the continuance rule's substantive requirements-delay only for the sake of

        "'
material evidence that due diligence could not have obtained sooner-are being

respected and are evident from facts that defense counsel is able and willing

formally to declare in writing. On this substantive score, even apart from its

formal shortcomings, Jeter's affidavit is lacking. Even if the affiant's hopes of

bolstering Jeter's alibi with GPS evidence were enough to move that evidence

from the realm of the speculative to the realm of the material, the affidavit

                                        17
includes nothing to assure the court that the defense's failure to pursue that

evidence from Jeter's February 2015 arraignment until a week or so before his

September 2015 trial comported with its obligation to prepare diligently.

      Mereover, unlike our own decisions which we may revisit if given

compelling enough reason to do so, the rules of procedure are not for us to

revise merely at will, or at defense counsel's urging. Those rules are not for the

trial court to revise (or ignore) either. Under the rules noted above, the trial

court did not abuse its discretion by denying Jeter's motion for a continuance,

when the motion predicated on absence of evidence was not accompanied by

the requisite affidavit.

III. The Joint Trial of Jeter's Robbery and Drug-Related Charges Was Not
     Prejudicial. ·

      Finally, Jeter contends that the trial court abused
                                                    .     its discretion
                                                                   .     by

refusing to order separate trials of the robbery charge and the charges of drug

and drug paraphernalia possession. Because Jeter was in no way prejudiced

by the joinder, the trial court's denial of his separate trials motion does not

entitle him to relief.

      . As the parties both note, two or more offenses "may be charged in the

same indictment ... if the offenses are of the same or similar character or are

based on the same acts or transactions connected together or constituting

parts of a common scheme or plan." RCr 6.18. A joint trial pf such offenses is

proper unle~s "it appears that a defendant or the Commonwealth is or will be

prejudiced by [the] joinder." RCr 8.31. Even when the joinder is improper,

moreov~r,   the error is reversible only upon a "showing of prejudice to th,e
                                         18
defendant. . . . This showing of prejudice cannot be based on mere

speculation, but must be supported by the record." Hammond v.

Commonwealth, 366 S.W.3d 425, 429 (Ky. 2012) (citing Rearick v.

Commonwealth, 858 S.W.2d 185 (Ky. 1993) (other citations and internal

quotation marks omitted)). Finally, "[t]he primary test for determining whether

joinder constitutes undue prejudice is whether evidence necessary to prove

each offense would have been admissible in a separate trial of the other."

Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002) (citing Price v.

Commonwealth, 31 S.W.3d 885, 889 (Ky. 2000)), and Rearick, 858 S.W.2d at

187).

         Here, although as Jeter nQtes, robbery and drug possession are not "of

the same or similar character," Jeter was not prejudiced by the joinder of the

drug-related offenses with the robbery offense. In· light of Jeter's police
         ../


statement shortly after the robbery wherein he claimed he was at a crack

house using cocaine the day ~f the robbery, Jeter's drug use was an inevitable

part of the robbery trial. Indeed, drug use was central to his consistent alibi

that he was first at a crack house and then later that day was attempting to

sell food stamps to raise money to buy cocaine and treat a new drug-using

friend to dinner. Evidence of Jeter's cocaine and paraphernalia possession

would also have been admissible at a    s~parate   robbery trial as evidence of
     .                                                                   .
Jeter's motive for the robbery. See KRE (Kentucky'Rule of Evidence) 404(b)(l)

(noting that. evidence of collateral crimes may be admissible if offered for some

non-character purpose such as "proof of motive"). Again, Jeter admitted that

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at the time of the robbery he was in need of cash to buy cocaine and dinner to

share with his new female friend. The evidence of Jeter's drug-related offenses

was relevant to that admission, and the jury was free to believe that part of

Jeter's statement, and yet doubt his claim that he raised money not by robbing

Perry, but by trying to sell food stamps.

      Regardless of whether the joinder of the robbery and drug charges was

techniQally correct under RCr 6.18, there was no prejudice. Jeter's own drug-

use alibi undercut any claim to the contrary.

                                  CONCLUSION

      In sum, Jeter's claims do not establish a tight to relief. Under the United .

States Supreme Court's decision in Perry, Jean Albrecht's unrequested-forin-

court 1dentification of Jeter did not implicate the Due Process concerns of

Biggers. and related cases because it was not the product of state action, much

less any unnecessary or improper state action. The trial court properly denied

Jeter's last-minute request for a continuance because, among other reasons,

Jeter's motion did not comply with RCr 9.04's affidavit requirement. The

joinder of the robbery and drug offenses, even if technically questionable, did

not result in any prejudice to Jeter. Accordingly, we hereby affirm the

judgment of the Hardin Circuit Court.

      All sitting. All concur.




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COUNSEL FOR APPELLANT:

Brandon Neil Jewell
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Emily Lucas
Assistant Attorney General




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