MANYELL REED V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
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RENDERED : MARCH 18, 2004
NOT TO BE PUBLISHED
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2002-SC-1052-MR
4A-O~i
MANYELL REED
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TOM McDONALD, JUDGE
NO. 02-CR-0353
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Manyell Reed, was convicted by the Jefferson Circuit Court of
two counts of first-degree robbery and two counts of intimidating a witness . He was
sentenced to twenty (20) years in prison. Appellant appeals to this Court as a matter of
right.'
On September 14, 2001, D'Nisha Wright, an assistant manager at the
Blockbuster Video store located at 26th and Broadway in Louisville, arrived at work to
find that her district manager was questioning employees about some missing money .
After questioning Appellant, who was at the time a customer service representative, the
district manager fired him .
On the same evening at approximately 11 :30 p.m ., as Wright and Teddy
Davis, another customer service representative, were preparing to close the store, a
1 Ky. Const . § 110(2)(b) .
man in a yellow hooded sweatshirt, dark pants, and with a dark cloth over his face,
entered the store yelling "Get the f
down ." Davis, who was in the rear of the store,
could see the robber waiving a gun and pointing it at Wright's head . The seven or eight
customers in the store fell to the ground as instructed. As the registers were opened,
the robber asked "Ted, Ted, where are you?" The robber then made Davis get up and
lock the doors. The masked robber yelled, "Open up the registers," and then ordered
that "Denise, open up the registers ."
At trial, Davis testified that the robber was Appellant based upon the
robber's voice, the way he carried himself, and his size . He testified that he and
Appellant had trained and worked together at the store for four months and that he had
no doubt that Appellant was the robber.
Assistant Manager Wright testified that Appellant was fired and left the
store at about 6 :00 p .m. She stated that Appellant returned to the store a couple of
times and also called on the phone . After the robber had entered the store and had
ordered her to open the register, she recognized the robber as Appellant . She said that
under the robber's black pants she could see khaki pants like those worn by
Blockbuster employees . She stated that the robber was wearing the same "pretty
brown shoes" that Appellant had worn to work and that she had complimented him on
his shoes . She testified that the sound of the ring of Appellant's cell phone was the
same as the robber's when it rang during the robbery. She testified that Appellant
initially ordered her to open the registers, but became impatient and opened them
himself, using a wand and bar code designed to be used by employees for quick
access to the registers during a robbery. She stated that Appellant ordered her to open
the safe, which operated on a fifteen minute opening delay. Appellant waited and then
removed three to four thousand dollars, along with the money from the registers and
fled before the police arrived . When the police arrived Wright and Davis were the only
witnesses remaining . They informed the police that they believed Appellant was the
robber.
Davis testified that about two weeks after the robbery Appellant pulled up
in his car and questioned him concerning his statements to the police . Appellant stated
to Davis that he had been locked up for the Blockbuster robbery but had been released .
Appellant also informed Davis that he was out of town on the night of the robbery and
stated to Davis that "I'll be watching you all." Around the same time, Wright testified
that she received the following:
[A] weird phone call from someone who said he was Manyell
Reed . He asked why she had told people ; that there was a
break in at his house; the police were in the house . Later,
the caller said, "Okay, I'll be watching you ."
Appellant and Natoniya Norton, his girlfriend and mother of his daughter,
testified in his defense. Appellant testified that he was not the person who robbed the
store because after he was fired, he angrily left the store and went home . He testified
that during the same evening, an individual named Leroy picked him up and that they
went to a club and played pool . He also said that he called Blockbuster a few times
and stopped by at about 6 :00 p .m . to inquire if he could rent movies one last time on his
employee account.
He recounted that later that evening he and Leroy picked up
Norton and proceeded to her mother's house to pick up clothes. They later returned
Norton to the Complex where her grandmother resided . Appellant testified that he and
Leroy left for Atlanta in order to help choreograph a local rap group the next day.
Appellant also denied threatening either Wright or Davis .
Norton testified that she received a call from Appellant the day he was
fired. She testified that Reed and Leroy picked her up at about 10 p .m. and that they
spoke for 30 to 35 minutes, traveled to her mother's house, and got something to eat.
Appellant then dropped her off at her complex where she signed in between 12 :00 to
12:15 p.m ., and Appellant was required to show his ID to enter.
At trial, the circuit court denied Appellant's motions for directed verdicts of
acquittal on the intimidating a witness charges. The court also denied Appellant's
request that the jury only be instructed on the "deadly weapon" theory of liability charge,
and that the jury not be given the option of convicting on the use of a "dangerous
instrument" theory. Appellant requests that this Court reverse and remand this case to
the circuit court for dismissal of the intimidation of a witness counts and for a new trial
on the robbery counts.
Appellant's first claim is that the trial court erred when it denied his motion
for a directed verdict on the two counts of intimidating a witness . The Commonwealth
argues that the statements to Wright and Davis that "I'll be watching you" could be
interpreted as a threat, and that Appellant's statement to Davis that he was out of town
the night of the robbery was an attempt to influence Davis' testimony . Appellant
responds that the evidence simply did not show that he threatened Davis or Wright
under KRS 524.040 .
As Appellant's acts occurred in 2001, we apply the pre-2002 version of
KRS 524 .040. The then prevailing version of KRS 524 .040 defines the offense of
intimidating a witness as follows :
(1) A person is guilty of intimidating a witness when, by use
of physical force or a threat directed to a witness or a
person he believes may be called as a witness in any
official proceeding, he:
(a) Influences, or attempts to influence, the testimony of
that person;
(b) Induces, or attempts to induce, that person to avoid
legal process summoning him to testify ;
(c) Induces, or attempts to induce, that person to absent
himself from an official proceeding to which he has
been legally summoned ;
(d) Induces, or attempts to induce, that person to withhold
a record, document, or other object from an official
proceeding ;
(e) Induces, or attempts to induce, that person to alter,
destroy, mutilate, or conceal an object with intent to
impair the object's integrity or availability for use in an
official proceeding ; or
(f) Hinders, delays, or prevents the communication to a
law enforcement officer or judge of information relating
to the possible commission of an offense or of a
violation of conditions of probation, parole or release
pending judicial proceedings .
(2) For purposes of this section :
(a) An official proceeding need not be pending or about to
be instituted at the time of the offense ; and
(b) The testimony, record, document or other object need
not be admissible in evidence or free of a claim of
privilege .
(3) "Threat" as used in this section means any threat
proscribed in KRS 514 .080 .
(4) Intimidating a witness is a Class D felony .
Threat is defined in KRS 524.040(3) as "any threat proscribed in KRS 514.080."
KRS 514 .080 defines the means by which a threat may be made as follows :
(1) A person is guilty of theft by extortion when he
intentionally obtains property of another by threatening
to :
(a)
Inflict bodily injury on anyone or commit any
other criminal offense ; or
(b)
Accuse anyone of a criminal offense ; or
(c)
Expose any secret tending to subject any
person to hatred, contempt, or ridicule, or to
impair his credit or business repute ; or
(d)
Use wrongfully his position as a public officer or
servant or employee by performing some act
within or related to his official duties, either
expressed or implied, or by refusing or omitting
2 KRS 524.040 (1986), amended by KRS 524.040 (Supp. 12002).
5
(e)
(f)
to perform an official duty, either expressed or
implied, in a manner affecting some person
adversely ; or
Bring about or continue a strike, boycott, or
other collective unofficial action, if the property
is not demanded or received for the benefit of
the group in whose interest the actor purports to
act; or
Testify or provide information or withhold
testimony or information with respect to
another's legal claim or defense .
Appellant alleges that the Commonwealth was required and failed to
establish that he had committed one of the acts enumerated in KRS 514 .080(1)(a)
through (f), which defines "threat ."
This Court's frequently repeated directed verdict standard is a follows :
On motion for directed verdict, the trial court must draw all
fair and reasonable inference from the evidence in favor of
the Commonwealth . If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict should not be
given . For the purpose of the ruling on the motion, the trial
court must assume that the evidence for the Commonwealth
is true, but reserving to the jury questions as to the credibility
and weight to be given to such testimony . On appellate
review, the test of a directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable for a jury to find
guilt, only then is the defendant entitled to a directed verdict
of acquitta1 . 3
It was not clearly unreasonable for the jury to find Appellant guilty of the
requisite threat under KRS 514.080(1)(a) . Appellant was aware that Wright and Davis
intended to testify against him and the jury could have believed in such circumstances
that his statements "I'll be watching you" were intended as a threat of bodily injury or an
act of stalking and harassment. While the statements, standing alone, may appear
3 Jordan v. Commonwealth, Ky., 74 S.W.3d 263, 266 (2002) (quoting Commonwealth v.
Benham , Ky., 816 S.W.2d 186,187 (1991) .
6
insufficient in the existing context, and allowing the Commonwealth all reasonable
inferences, the trial court did not err in overruling the directed verdict motion .
Appellant claims several errors in the jury instructions on the robbery
charges . Jury instructions No . 1 and 2 on the two robbery charges are as follows :
You will find the Defendant, Manyell D. Reed, guilty of
Robbery in the First Degree under this Instruction if, and
only if, you believe from the evidence beyond a reasonable
doubt all of the following :
A.
That in Jefferson County, Kentucky, on or
about the 14th day of September, 2001, the Defendant stole
cash from Blockbuster Video;
B.
That in so doing and with the intent to
accomplish the theft, he threatened the immediate use of
physical force upon D'Nisha Wright;
AND
C.
That when he did so :
i . He was armed with a handgun,
OR
ii. He threatened the immediate use of a dangerous
instrument upon D'Nisha Wright.
The same instruction was also given on the robbery count against Davis, except that
Davis' name was used .
Instruction No. 5 defined "Dangerous Instrument" as follows :
[A]ny instrument, article, or substance which, under the
circumstances in which it is used, attempted to be used, or
threatened to be used, is readily capable of causing death or
serious physical injury ; or, any object that is intended to
convince the victim that it is a pistol or other deadly weapon,
and which does so convince the victim .
Appellant first argues that there was no evidence to support a "dangerous
instrument" theory of guilt. Specifically, Appellant contends that the instruction should
not include theories of guilt based on both the robber being armed with a handgun and
with the robber using a dangerous instrument. Appellant attempts to show that the
language in instructions number 1, 2 and 5 contained the term "dangerous instrument"
and that he never possessed an "instrument, article or substance," but rather he
possessed a handgun . As a result, Appellant claims that the jury instructions and
verdict were inconsistent with Burnett v. Commonwealth4 and Commonwealth v.
Whitmore,5 and violated the unanimity requirement the Kentucky Constitution and the
due process requirement of the Kentucky and United States Constitutions .
As reflected in Burnett and Whitmore, presenting the jury with alternate
theories of guilty in the instructions is reversible error if there was not sufficient
evidence to support both theories . This Court held:
Any instruction which permits a conviction on the basis of
alternative theories that are not supported by the evidence
runs afoul of the due process requirement that each juror's
verdict be based on a theory of guilt in which the
Commonwealth has proven each and every element beyond
a reasonable doubt . Here, there was insufficient evidence
that Whitmore possessed the cocaine with intent to
manufacture or dispense it, and thus the trafficking
instruction violated the unanimity requirement .6
In the present case, there was ample evidence to support the "handgun"
instruction . The "dangerous instrument" instruction was not improper albeit perhaps
unnecessary. As the Commonwealth was unable to produce the handgun, the jury
could have questioned whether the witnesses saw an actual operative handgun or
merely a facsimile thereof. Moreover, juror unanimity is not in issue because the broad
definition of "dangerous instrument" provided in the instructions encompasses deadly
weapons, including a handgun . "Although not every `dangerous instrument' is a `deadly
weapon,' a 'deadly weapon' ordinarily is a dangerous instrument ."7 Consequently, there
was no error.
4 Ky., 31 S.W .3d 878, 882 (2000) .
Ky., 92 S .W.3d 76, 81 (2002).
6 _Id.
Whorton v . Commonwealth , Ky., 570 S.W .2d 627, 631 (1978) (overruled on other
grounds by Polk v. Commonwealth , 679 S .W .2d 231, 234 (1984)) .
8
Appellant's second claim is that the Commonwealth abandoned the
"dangerous instrument" theory of guilt when it filed a bill of particulars prior to trial.
The
bill of particulars stated that Appellant was only "armed with a handgun" not a
dangerous instrument. This court has noted the policy behind a bill of particulars in
criminal cases is to provide information fairly necessary to enable the accused to
understand and prepare his defense against charges without prejudicial surprise at
trial s This argument is without merit as the conduct for which Appellant was charged
was clearly revealed in the bill of particulars . As a result, there was no prejudice,
surprise, or error caused by the bill of particulars .
Appellant's third argument is that the instructions given by the trial court
left out an essential element of the offense, i .e. , that the threat must not be against a
participant in the crime . Appellant claims that whether Davis or Wright were
participants in the crime is an essential element of robbery to be determined by the jury.
Appellant claims that the harm caused by the jury instruction on the alternative
"dangerous instrument" theory of guilt allowed a conviction without a finding beyond a
reasonable doubt that each essential element of the offense had been proven .
We reject Appellant's argument as there was no evidence suggesting that
Wright or Davis were participants in the crime . Although Wright and Davis may have
been coerced at gunpoint to perform specific tasks, such is not participation in the crime
and did not warrant such an instruction . If any error was committed here, it was
undoubtedly harmless.
Appellant's final argument is that the definition of "dangerous instrument"
was itself defective because the Court had added language that was not contained in
8 Abbott v. Commonwealth , Ky., 822 S.W.2d 417, 419 (1992).
9
the statute that defines "dangerous instrument ." 9 Appellant contests the following
language as applying only to deadly weapons not dangerous instruments : ". . . . or, any
object that is intended to convince the victim that it is a pistol or other deadly weapon,
and which does so convince the victim ." Appellant claims that this is the test in Merritt
v. Commonwealth ' ° (Merritt test), which is to be applied only by the trial court to
determine as a matter of law whether an object is a deadly weapon . In Lambert v.
Commonwealth ," the Court of Appeals held that there was no reversible error where
the jury instructions included the Merritt language. Appellant attempts to distinguish
Lambert by noting that the Merritt language was used in the definition of "gun .
The
Court of Appeals noted the following in a footnote :
We note that the trial court may have been better advised in
its jury instructions to have followed the language in KRS
515.020 as to a deadly weapon ; and by applying Merritt to
have defined "deadly weapon" in a manner similar to its
definition of "gun ." (Citations omitted) . 13
The language added to the dangerous instrument instruction is consistent with our
holding in Merritt . 14 As previously noted, this Court has held that a pistol or deadly
weapon can be considered a part of the more inclusive category of dangerous
instruments . Appellant does not dispute that he was in possession of a handgun, but
he contends that the court must determine as a matter of law whether that handgun is a
"deadly weapon ." Appellant's brief even admits that he was "armed with a deadly
KRS 500.080(3).
Ky., 386 S .W.2d 727, 729 (1965) .
Ky . App ., 835 S .W .2d 299, 300-01 (1992).
12
Id .
13
Id. at 301, FN5 .
14 r
Supra .
9
0
11
10
weapon" as a matter of law. As such, the instructions given were extremely similar to
the model instructions, and any error would have to have been harmless .
15
Accordingly, the judgment of conviction is affirmed .
All concur.
15
1 Cooper, Kentucky Instructions to Juries (Criminal) § 6.03 (4th ed . Anderson 1993).
11
COUNSEL FOR APPELLANT :
Bruce P. Hackett
Deputy Appellate Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
George D . Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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