JOSEPH MANUEL RODRIGUEZ V COMMONWEALTH OF KENTUCKY
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JOSEPH MANUEL RODRIGUEZ
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
2000-CR-0026
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, Joseph Manuel Rodriguez, was convicted of first-degree robbery and
sentenced to twenty years' imprisonment . He appeals to this Court as a matter of right .
Ky. Const. ยง 110(2)(b) . On appeal, Rodriguez raises three issues : (1) the police
employed an unconstitutional identification procedure, (2) the trial court erred in
admitting evidence that he stole a truck and fled the scene after the robbery, and (3) the
trial court erred in denying his motion for a new trial on grounds that a juror failed to
answer a question that would have caused the juror's disqualification . For the reasons
stated below, we affirm the judgment of the Bullitt Circuit Court .
I.
Facts
Rodriguez was convicted of robbing a Bullitt County Save-A-Step Food Market
on February 24, 2000 . Crystal Smith and Debbie Carter were working at the Save-AStep at the time of the offense . According to Smith, the robbery occurred a few
minutes before the store was scheduled to close . The robbery itself was a fairly
conventional and, sadly, an all too common event. A man walked into the store,
produced a weapon, and demanded money on the threat of death . Fortunately, no one
was hurt on this occasion . After taking what cash he could, the man fled the store.
Smith then telephoned the police, who responded within minutes . On the phone, Smith
described the robber as wearing blue jeans, tennis shoes, glasses, and a white polo
shirt with green stripes and collar underneath a green, hooded sweatshirt .
Officer Steve Cox was the first officer to respond to the call. After confirming that
no one was injured at the Save-A-Step, he began searching the area for the suspect .
Within thirty minutes, he spotted a man, who fit the suspect's description, walk out of a
drainage ditch and enter a Super America convenience store, which was within 400 feet
of the Save-A-Step. Upon observing the man enter the store, Cox called for backup.
State Trooper Darryl Paul arrived shortly thereafter. Cox and Paul walked toward the
Super America together . As they were approaching, the suspect ran out of the Super
America and stole a pickup truck that was parked in front of the store with its doors
open and its motor running . The suspect left the parking lot in a hurry, almost hitting
Cox in the process .
A vehicle chase ensued and concluded when the pickup truck turned down a
dead-end alley. A foot chase then began when the suspect fled the truck and ran into a
wooded area . Rodriguez was apprehended by two Jefferson County police officers a
few minutes later. These officers placed Rodriguez into Paul's custody, after Paul
identified Rodriguez as the suspect who had stolen the pickup truck. Paul took
Rodriguez to the Save-A-Step for identification by Smith and Carter, both of whom
positively identified Rodriguez as the person who had robbed them . They repeated
these identifications with equal force at Rodriguez's trial .
II .
Discussion
Identifications
Rodriguez first argues that the trial court erred in denying his motion to suppress
Smith's and Carter's identifications of him as the person who robbed them on grounds
that their initial identifications were the unlawful result of an unduly suggestive, singleperson showup . We disagree .
A single-person-showup identification is inherently suggestive, which requires the
court to assess the totality of the circumstances surrounding the identification to
consider the likelihood of an "irreparable misidentification" by the witness. Merriweather
v. Commonwealth, Ky., 99 S .W .3d 448, 451 (2003), citing Neil v. Biggers, 409 U .S .
188, 199, 93 S . Ct. 375, 34 L. Ed . 2d 401 (1972) . The Neil Court set forth five factors to
be considered when making this assessment : (1) the opportunity of the witness to view
the criminal at the time of the crime, (2) the witness's degree of attention, (3) the
accuracy of the witness's prior description of the criminal, (4) the level of certainty
demonstrated by the witness at the confrontation, and (5) the length of time between
the crime and the confrontation . Id. at 199-200, 93 S. Ct. at 382, 34 L. Ed . 2d at 411 .
Applying these factors to the case at bar, we conclude that Smith's and Carter's
identifications of Rodriguez were sufficiently reliable.
Both Smith and Carter had good opportunities to view the robber. The store was
well lit and the robber was inside the store for five to ten minutes . Smith and Carter
were robbed at gunpoint, which focused their attention on the events and
circumstances surrounding the robbery. See United States v. Burbridge , 252 F .3d 775,
780-81 (5th Cir. 2001) (open armed robbery) ; Levasseur v. Pepe , 70 F.3d 187, 195 (1 st
Cir. 1995) (witness's attention during traumatic experience is presumed to be acute) .
Smith's and Carter's descriptions of the robber were very similar, which supports a
finding that the identifications were accurate . United States v. Bredy, 209 F.3d 1193,
1196 (10th Cir. 2000), cert. denied 531 U .S . 897, 121 S. Ct. 229, 148 L . Ed . 2d 164
(2000). Additionally, each remembered specific details as to what the robber was
wearing . Id . Both Smith and Carter were certain of their identifications of Rodriguez at
the time of the showup . Finally, only approximately two hours elapsed between the
robbery and the showup ; thus, Smith's and Carter's memories were relatively fresh.
See Burbridge , 252 F .3d at 781 . Because all five of the Neil v. Biggers' factors weigh in
favor of the reliability of the identifications, we hold that the trial court did not err in
denying Rodriguez's motion to suppress Smith's and Carter's identifications of him .
The Stolen Truck
Next, Rodriguez argues that the trial court erred in admitting evidence of the
stolen truck and the subsequent chase that led to his arrest.' Again, we disagree .
Rodriguez moved in limine to suppress this evidence on grounds that it was
excluded by KRE 404(b) as inadmissible prior-bad-act evidence . The Commonwealth
responded that the theft of the truck and subsequent chase were inextricably entwined
with the other evidence of the case and, thus, was admissible under the second
exception to the exclusion of evidence under KRE 404(b). The trial court denied
Rodriguez's motion on grounds that evidence of flight is admissible to prove guilt.
Rodriguez was not tried on these charges in Bullitt County because the theft,
chase, and capture occurred in Jefferson County .
It has long been held that proof of flight to elude capture or to prevent discovery
is admissible because "flight is always some evidence of a sense of guilt." Hord v.
Commonwealth, 227 Ky. 439, 13 S .W .2d 244, 246 (1928); see also, etc . , Chumbler v.
Commonwealth, Ky ., 905 S .W .2d 488, 496 (1995) ; Hamblin v. Commonwealth , Ky., 500
S .W .2d 73, 74 (1973). This common-law rule is based on the inference that the guilty
run away but the innocent remain, which echoes more eloquent language from the
Bible : "The wicked flee where no man pursueth ; but the righteous are bold as a lion ."
Proverbs 28:1 . Despite its long lineage, we have not yet addressed whether the
common-law rule survives the adoption of the Kentucky Rules of Evidence (KRE). See
Garrett v. Commonwealth, Ky., 48 S.W .3d 6,10-11 (2001) (holding the common-law
distinction between treating and examining physicians was eliminated by the adoption
of KRE 803(4)) . We do so now and begin with relevancy .
KRE 401 defines relevant evidence as "evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence ." By definition, the
common-law rule regarding the admissibility of evidence of flight is a rule of relevancy.
That is, evidence of flight is admissible because it has a tendency to make the
existence of the defendant's guilt more probable : a guilty person probably would act
like a guilty person . But here, Rodriguez seems to argue that evidence of his flight
relates to the theft of the truck and not to the robbery of the Save-A-Step. If true, the
evidence should have been excluded under KRE 402 . Rodriguez, however, fails to
recognize the broader implications of the evidence .
Rodriguez stole the truck from a convenience store that was about a block away
from the Save-A-Step, which had been robbed some thirty minutes before . Thus, the
theft of the truck was both spatially and temporally close to the crime charged . More
importantly, Rodriguez stole the truck in the plain view of the two approaching police
officers. It can be reasonably inferred from the evidence that, from his vantage point in
the store, Rodriguez saw the two police officers closing in on his position and that he
stole the truck to avoid the officers and not because he desired the truck itself. In other
words, there was evidence to infer that Rodriguez stole the truck as a means to escape
arrest for the robbery, rather than as an end in itself. Thus, the evidence was relevant
and admissible subject to the balancing test of KRE 403. Consequently, all that is left is
Rodriguez's argument that the evidence should have been excluded under KRE
404(b) .
KRE 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith ." Under this rule, the theft of the truck and subsequent attempt to escape
were not admissible to show that, because Rodriguez stole the truck, he also likely
robbed the Save-A-Step. But as shown above in the relevancy analysis, that is not why
the trial court admitted the evidence . It was admitted for another purpose .
Under KRE 404(b)(1), evidence of other crimes, wrongs, or acts is not excluded
by the rule "[i]f offered for some other purpose, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident ." This
list of other purposes is "illustrative rather than exhaustive ." Colwell v. Commonwealth ,
Ky., 37 S.W .3d 721, 725 (2000). Thus, we hold that the trial court properly admitted the
theft of the truck and Rodriguez's subsequent attempt to elude the police because it
was evidence of flight from the Save-A-Step robbery and, hence, it was offered for
"some other purpose," i.e. , an expression of a sense of guilt, within the meaning of KRE
404(b)(1) .
Juror Disqualification
During voir dire, one of the prospective jurors, a Mr. Jones, volunteered that he
had heard about the case from a next-door neighbor, John Casey, whose truck was
stolen from the Super America on the night that the Save-A-Step was robbed . Juror
Jones stated that Casey was a good neighbor and that he would be inclined to believe
him . Further, Juror Jones stated that he would tend to believe that Rodriguez
committed the robbery if Rodriguez was shown to be the person who stole the truck. At
this point, defense counsel moved to strike Juror Jones for cause . The trial court
apparently did not rule on the motion at the time it was made .
Sometime later, another Juror, a Mr. Fawbush, approached the bench and told
the trial judge that he had heard Juror Jones state affirmatively that Rodriguez stole
Casey's truck . Juror Fawbush admitted that, because of this knowledge, "I can't help
but think that he (Rodriguez) stole the truck." Based on this revelation, defense counsel
moved for a mistrial on grounds that the entire jury panel had been tainted by Juror
Jones's statements . The trial court denied the motion, but stated its intent to generally
question the entire panel to determine which jurors had overheard Juror Jones's
comments . The trial court then struck all jurors who volunteered that they had heard
the comments .
After the conclusion of the trial, defense counsel discovered that one of the
jurors on the venire, a Ms. Ernst, had heard Juror Jones's comments but failed to reveal
this in response to the trial court's direct questions on the subject . Rodriguez relied on
this new information to move for a new trial. In the hearing on the motion, defense
counsel argued that Ms . Ernst should have been removed for cause. Further, defense
counsel argued that because Rodriguez had to use a peremptory challenge to remove
Ms . Ernst and because Rodriguez exhausted all of his peremptory challenges, a new
trial was required under the law. The trial court agreed with defense counsel's
statement of the law, but disagreed with the factual premise upon which it was based .
Specifically, the trial court concluded that Rodriguez failed to demonstrate that Ms.
Ernst should have been struck for cause .
At the new trial hearing, Ms. Ernst explained why she did not respond to the trial
court's questions regarding whether she had heard Juror Jones's comments :
Because I didn't think nothing of it . I mean, honestly, I didn't
think nothing of it . I wasn't taking anybody's word for
nothing . . . . To me, I didn't know if . . . he was telling the
truth or not . I don't know him (Juror Jones). So I didn't take
what he said-you know, I don't know. I just . . . don't know
why I didn't (answer the trial court's questions).
Based on this and other testimony, the trial court denied Rodriguez's motion for a new
trial .
The trial court explained that its exclusion of all jurors who had heard Juror
Jones's comments was cautionary . Had the Commonwealth or defense challenged this
decision, the trial court stated that it would have conducted a more searching inquiry
into whether there was cause to dismiss these jurors. Because no such challenge was
made, no inquiry was made . The trial court reasoned that the motion for a new trial
now necessitated this inquiry as to Ms. Ernst. After conducting the inquiry, the trial
court concluded that it would not have excluded Ms. Ernst for cause based on her
testimony that (1) she placed no credence in Juror Jones's statements ; and (2) that, if
she had been selected to serve as a juror, she would have listened to the evidence
before making a decision on the issue of Rodriguez's guilt .
The "decision whether to excuse a juror for cause is a matter within the sound
discretion of the trial court ." Furnish v. Commonwealth , Ky., 95 S .W.3d 34, 44 (2002).
The issue of juror bias remains a question of trial court discretion even after the jury is
sworn . Gould v. Charlton Co. . Inc. , Ky., 929 S .W .2d 734, 740 (1996). The question of
jury bias is decided by examining whether the challenged juror can be impartial in light
of the particular facts and circumstances connecting the juror to the case to be tried .
See Bowling v . Commonwealth, Ky., 942 S .W.2d 293, 299 (1997), cert. denied,
522 U .S. 986, 118 S . Ct. 451, 139 L . Ed . 2d 387 (1997). There are some cases where
the relationship between the juror and the case to be tried is so close that bias must be
presumed and the juror must be excluded regardless of any claims of non-bias . See,
e.g_, Ward v. Commonwealth , Ky., 695 S .W .2d 404, 407 (1985). But knowledge of the
case by itself does not meet this criteria . See Scruggs v. Commonwealth , Ky., 566
S .W .2d 405 (1978), cert. denied, 439 U .S. 928, 99 S . Ct . 314, 58 L. Ed . 2d 321 (1978)
(juror heard a witness for the Commonwealth discussing the case prior to trial) .
Upon careful review of the record, we cannot say that the trial court abused its
discretion in determining that Ms. Ernst could be impartial . Therefore, we hold that
there was no error in denying Rodriguez's motion for a new trial.
For the reasons set forth above, we affirm the judgment of the Bullitt Circuit
Court.
Cooper, Graves, Keller, and Wintersheimer, JJ ., concur. Stumbo, J ., dissents by
separate opinion, with Lambert, C.J ., joining that dissent .
COUNSEL FOR APPELLANT :
Donna L. Boyce
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General of Kentucky
Carlton S . Shier, IV
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : JUNE 12, 2003
TO BE PUBLISHED
,*ixyrrme C~vurf of ~rufurhV
2001-SC-0345-MR
JOSEPH MANUEL RODRIGUEZ
V.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L . WALLER, JUDGE
2000-CR-0026
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from the majority's opinion because I believe
Appellant is entitled to a new trial due to the failure of juror Ernst to respond truthfully to
a question that would have resulted in her dismissal for cause by the trial court.
Since Appellant was compelled to use one of his peremptory challenges against
Ernst, when she should have been excused for cause, he should be granted a new trial .
Appellant quotes from a recent opinion of this Court, wherein it states : "[I]t has always
been the law in Kentucky 'that prejudice is presumed, and the defendant is entitled to a
reversal in those cases where a defendant is forced to exhaust his peremptory
challenges against prospective jurors who should have been excused for cause ."'
Gamble v. Commonwealth , Ky., 68 S.W.3d 367, 374 (2002) (quoting Thomas v.
Commonwealth , Ky., 864 S .W.2d 252, 259 (1993)).
Without question, Ernst should not have remained silent when the trial judge
questioned the jury panel regarding Jones' statement . If Ernst had appropriately
responded, then she would have been struck for cause by the trial court. As noted in
Gamble , supra : "All that is required is that '[a] party must exercise all of his peremptory
challenges in order to sustain a claim of prejudice due to the failure of the court to grant
a requested challenge for cause."' I note that here the trial court excused for cause
every other juror who acknowledged hearing Jones' statement. None were asked
whether they believed Jones' statement prior to the court's determination that they
should be struck for cause. The juror withheld information that would have resulted in
her being stricken . Thus, there was reversible error and this matter should be retried .
Lambert, C.J ., joins this dissent.
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