Johnson v. Commonwealth

694 S.W.3d 232

Ruben JOHNSON, IV, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0185-MR

Supreme Court of Kentucky.

December 14, 2023

Rehearing Denied April 18, 2024

ON APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE MARY SHAW, JUDGE, NO. 21-CR-000724

COUNSEL FOR APPELLANT: Christopher B. Thurman, Assistant Appellant Advocate, Louisville Metro Public Defender’s Office.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Solicitor General.

OPINION OF THE COURT BY JUSTICE CONLEY

This case comes before the Court on appeal as a matter of right¹ by Ruben Johnson, the Appellant, from the judgment and sentence of the Jefferson Circuit Court. Johnson was convicted of first-degree robbery; complicity to first-degree robbery; first-degree assault; fourth-degree assault; two counts of first-degree strangulation; third-degree terroristic threatening; and two counts of intimidating a participant in the legal process. He now appeals arguing the trial court abused its discretion by admitting evidence of three prior misdemeanor convictions as rebuttal character evidence and in admitting the testimonial hearsay statements of a witness; alleging error when the trial court failed to direct verdicts for both counts of first-degree robbery and one count of intimidating a participant in the legal process; and alleging error when the trial court failed to poll the jury. We affirm the trial court on all counts except that Johnson was entitled to a directed verdict on the count that resulted in his conviction for complicity to first-degree robbery.

I. Facts

There are two incidents involved in this case, one stemming from December 26, 2019, and the other from January 25, 2020. Johnson was in a relationship with Cheryl Martin, who had two children. On December 26, Martin drove Johnson along with her sister, Latasha Martin, and Johnson’s friend, Theras Pettis, to her apartment. Cheryl had to work and left her two children with the other three. On her break, she called her sister to check on the kids. She heard Johnson and Latasha screaming and arguing. Latasha, Pettis, and Johnson had all been drinking. Cheryl left work to go home.

When she arrived, although the confrontation between Latasha and Johnson had settled down, Cheryl ordered Johnson and Pettis to leave, and threatened to call the police. Cheryl took her kids to the store for approximately one hour to give Johnson time to go. But when she returned Johnson was still there and had invited other friends to come over. At some point, Cheryl confronted Johnson with her phone in her hand and Johnson took her phone, then grabbed Cheryl by the throat and lifted her off the ground. Cheryl could not breathe, and her vision started to blur. Johnson then dragged Cheryl outside the apartment and threw her down the hallway stairs. Cheryl was so dazed by the impact she could not get up. Johnson followed her to continue the attack, but Latasha intervened and pulled on Johnson’s jacket in an attempt to hold him off. Johnson’s friends, though none were specifically identified, grabbed at Latasha to stop her. One of these unidentified friends also took her phone. Johnson proceeded to throw Cheryl down another flight of stairs.

Cheryl’s phone was stomped on and broken, though it was recovered in the grass outside the apartment building after a phone call was made to it. Latasha’s phone was never recovered. The two sisters had a neighbor call the police for them. Johnson’s brother came to pick him and his friend up before the police arrived. Johnson threatened to kill Cheryl as he was leaving.

When police arrived they offered to take Cheryl to the hospital, but she did not want to leave her children. She informed the police about the incident and got an interpersonal protective order (IPO) taken out against Johnson. Although she tried several times to have the IPO served, it never was. Cheryl told Johnson about the IPO, but he disregarded it. He continued to visit Cheryl, and Cheryl testified that she thought it best not to resist Johnson to protect herself and her children.

From this December incident, an indictment would later issue: two counts of robbery in the first degree; strangulation in the first degree; two counts of intimidating a participant in the legal process; two counts of assault in the fourth degree; and two counts of terroristic threatening in the third degree.

On January 25, 2020, another attack occurred. It must be noted that Cheryl admits she has little memory of the night in question. It began with her driving Johnson to his apartment. While there, some neighbors came to visit. Cheryl made everyone a drink, and subsequently she and Johnson used cocaine. Johnson’s testimony was that after leaving his apartment, Cheryl and he took a neighbor to the grocery store. Afterward, he and Cheryl had dinner and he purchased what he believed was marijuana but was later discovered by Johnson to be a synthetic copy known as spice. The two then went to Cheryl’s apartment. At her apartment, the kids were told to go to their room while Cheryl and Johnson smoked the spice. Johnson’s account of the subsequent events is that he eventually went to bed, but Cheryl woke him up because she wanted more cocaine. Johnson admitted to slapping her and then restraining her from leaving the apartment by grabbing her around the neck, as she was going to get more cocaine. Johnson also admits Cheryl told him she couldn’t breathe at which point he released her. Johnson then went to use the bathroom. When he came out, he saw the apartment door closing. He went outside the apartment at which point he discovered Cheryl at the bottom of the flight of stairs. He proceeded to help her back into the apartment, passing a neighbor, Sheena Pittman.

After getting Cheryl into the apartment, Johnson testified, he got a towel to clean up her injuries. Eventually, Johnson noticed a police officer shining a light through the apartment window. Pittman had called the police to report a domestic dispute. The response time of the police was only a couple minutes, Body camera footage from one of the officers shows they were let in the apartment building by Pittman. Police knocked multiple times and announced who they were. The police noted blood on the stairwell and on the outside of Cheryl’s apartment door. One officer heard moaning from inside her apartment. While this was occurring, Officer Huber interviewed Pittman. That interview was captured on his body camera and was played at trial. Pittman told Officer Huber that when she passed Cheryl and Johnson on the steps, Cheryl reached out to her. Johnson told Pittman Cheryl fell down the steps, but Pittman told Officer Huber that Cheryl did not fall, and that she did not think Cheryl was intoxicated at the time.

The police continued knocking and debated whether to kick down the door. By the time eight minutes had elapsed since their arrival, Officer Martin—promoted to detective by the time of trial—opened a hallway window and went out onto the balcony to get a view inside the apartment. He relayed what he saw to his fellow officers. He saw a woman lying on the ground and Johnson was on top of her. He noted knots on her face, a black eye, and blood. She appeared to be breathing from her mouth and Officer Martin did not think she was in a condition to speak. He also saw blood on Johnson’s pants and noted that Johnson was attempting to move Cheryl out of his view.

Johnson refused to open the door for the police. At first, he told officers he did not want to open the door because he had been using drugs. He was told that did not matter as they were concerned about Cheryl and that emergency services were waiting to check her out. Johnson still refused and said nobody had called the police. Officer Martin corrected him, but Johnson still refused to open the door.

At this point, fifteen minutes had elapsed since the arrival of the police. A police sergeant arrived at the scene and was communicating with Johnson through the window. He had noted Cheryl was lying face down and appeared unresponsive. Based on his observations, he ordered Officer Huber to kick down the door. Notably, Johnson began complaining that the police would have to pay for the door. Johnson was detained, apparently arrested, and taken to a police vehicle by Officer Huber. Officer Huber testified to telling Johnson to stop talking, as Johnson would not stop complaining, stating the police had to pay for the door; that nobody had called them; and that Cheryl had only fallen down the stairs. Johnson was then taken to the police station.

Cheryl’s injuries at the apartment were noted as her left eye completely swollen shut; knots on her forehead; bleeding from her nose and mouth; marks on her neck; and she had urinated on herself. Cheryl’s own testimony was that she had no memo- ry of the actual attack save for one: that Johnson was holding her down across his legs, hitting her multiple times on her left side and throat. At the hospital, Cheryl was treated by Dr. Daniel O’Brien, who has worked in emergency medical care since 1985. Dr. O’Brien testified that Cheryl would likely have died without emergency medical aid. He noted her injuries to her face were a "very violent trauma" resulting in swelling and contusions around her left eye, left cheek, mouth, jaw, and ear. CT scans of her back and neck showed significant blood accumulation and a crack in the back of her skull, which Dr. O’Brien noted is a particularly hard bone to break. Dr. O'Brien also testified to ligature marks on Cheryl's neck which, when he was informed she had urinated on herself at the scene, led him to conclude she had been strangled.

Despite being treated in the hospital, Cheryl’s injuries continued to get worse for a time. Her throat and larynx swelled to the point that her airway was closed, and she had to be intubated. In all, she was in the hospital for six days. Nurse Yazel, who worked for...