Gray v. Commonwealth

1

JAMES ANTHONY GRAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-SC-0492-MR

Supreme Court of Kentucky

June 13, 2024

NOT TO BE PUBLISHED

ON APPEAL FROM SCOTT CIRCUIT COURT HONORABLE THOMAS CLARK SPECIAL JUDGE NO. 07-CR-00211

OPINION AND ORDER

James Anthony Gray was convicted by the Scott Circuit Court after a jury trial of two counts of murder for intentionally killing his parents, James Gray and Vivian Gray (collectively Gray's parents), and one count of tampering with physical evidence. This Court reversed and remanded, and on retrial the jury again found Gray guilty of the same crimes.^[1] Gray received consecutive sentences for a total of fifty-five years' as follows: Count 1, Murder twenty years'; Count 2, Murder: thirty-years'; and Count 3, Tampering: five years'. Gray again appeals as a matter of right, alleging multiple trial errors. Gray's murder convictions are affirmed because the Court was equally split in its voting and the tampering conviction is reversed by a majority of the Court.

I. THE MURDER CONVICTIONS

As to the two murder convictions, the vote of the six members of this Court participating in the determination of this appeal is equally divided. Therefore, pursuant to Supreme Court Rule (SCR) 1.020(1)(a), the judgment of the Scott Circuit Court on these convictions stands affirmed.

Bisig, Keller, and Lambert, JJ., would affirm the judgment of the Scott Circuit Court; Conley, Nickell, and Thompson, JJ., would reverse the judgment of the Scott Circuit Court. VanMeter, C.J., not sitting.

II. THE TAMPERING CONVICTION

As to the tampering conviction, the vote of the six members of this Court participating, Bisig, Conley, Keller, Lambert, Nickell, and Thompson, JJ., is to reverse and remand for the trial court to vacate that conviction.

Gray argues that the mere fact that the gun used to commit the murders was never recovered was insufficient to allow the jury to infer that Gray intended to impair the availability of the evidence while believing an official proceeding may be instituted. Relying on Mullins v. Commonwealth, 350 S.W.3d 434, 443-44 (Ky. 2011), Gray argues that the fact that the perpetrator leaves the scene with evidence is not enough to establish a tampering charge when insufficient steps were taken to locate that evidence and no proof is provided that the defendant acted to prevent the evidence from being available at trial.

Gray argues that no evidence was presented at trial regarding what steps the police took to recover the gun.

The Commonwealth argues that in construing the evidence in the light most favorable to the Commonwealth, it was not clearly unreasonable for the jury to find Gray guilty of tampering after the jury found beyond a reasonable doubt that Gray had murdered his parents. There was evidence Gray had a .45 caliber pistol, and the jury heard evidence that the police engaged in an extensive search for the murder weapon. The Commonwealth cites various portions of testimony from Detective Rodger Persley and states that the search for the murder weapon included Gray's parents' home and surrounding areas, Gray's home, cars, and work van. Having reviewed such testimony, Detective Persley did not testify that Gray's home was searched for the murder weapon. Instead, he testified that police sought a search warrant to seize Gray's work clothes to test them for gunshot residue, but this warrant was denied.

KRS 524.100(1) states in relevant part:

A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding[.]

In Mullins, 350 S.W.3d at 442, our Court established that evidence that the defendant must have left the scene with the firearm "is not enough to support a tampering charge without evidence of some additional act demonstrating an intent to conceal." The Court explained:

When a crime takes place, it will almost always be the case that the perpetrator leaves the scene with evidence. If this amounted to a charge of tampering, the result would be an impermissible "piling on."

Instead, intent to impair availability of evidence, believing that an official proceeding may be instituted, is the standard required under KRS 524.100....[W]here the person charged is the defendant, it is reasonable to infer that the primary intent when a defendant leaves the scene of a crime is to get himself away from the scene and that carrying away evidence that is on his person is not necessarily an additional step, or an active attempt to impair the availability of evidence.

Id. at 443. When there are "conventional" locations where a firearm could have been found after being carried away, but there is no evidence that the police searched those places, rather than just searching the murder scene, this is insufficient to establish a tampering charge. Id. at 444.

The Commonwealth cannot bootstrap a tampering charge onto another charge simply because a woefully inadequate effort to locate the evidence was made by the police. It is often the case that evidence will not be found. However, it is insufficient to bring a charge of tampering based solely on the fact evidence was not found when there were insufficient steps to locate that evidence, and there is no proof that the defendant acted with the intent to prevent evidence from being available at trial.

Id.

This same reasoning was applied in McAtee...