Johnson v. Commonwealth

LAMONT JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2018-SC-000133-MR

Supreme Court of Kentucky

OCTOBER 31, 2019

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

NO. 16-CR-01050

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Kenton County Grand Jury indicted Appellant, Lamont Brandon Johnson, for murder and for being a first-degree persistent felony offender (PFO). At trial, the jury found Johnson guilty of murder, and the trial court sentenced him in accordance with the jury's recommendation to life in prison. At sentencing, the trial court dismissed the PFO count of the indictment on the Commonwealth's motion. Johnson appeals to this Court as a matter of right, Ky. Const. §110(2)(b).

Appellant raises four issues on appeal, alleging the trial court erred by: (1) failing to provide the jury with lesser-included offense instructions for first- and second-degree manslaughter, (2) admitting KRE 404(b) evidence of a prior bad act, (3) allowing an ineligible witness to testify in rebuttal, and (4) allowing gruesome autopsy photos to be shown to the jury. After careful review, we affirm.

I. BACKGROUND

Appellant and Trina Coleman were involved in a turbulent domestic relationship between the months of June and November 2016. The relationship ended abruptly November 2 when Coleman was found deceased in the apartment Appellant sometimes shared with her. Coleman's cause of death was asphyxiation by strangulation. Appellant was charged with her murder.

The Commonwealth's case focused on Appellant's verbal and physical assaultive behavior directed at Coleman and Coleman's attempts to end the relationship following a public episode of physical violence. Sally Moore, one of Coleman's closest friends, witnessed Appellant ram the back of Coleman's vehicle with his vehicle, then physically assault her. Following this August 18, 2016 event, Coleman obtained an emergency protective order that was never served on Appellant. Coleman's friends and family observed and testified to changes in her mental state and behavior following the assault.

Appellant's narrative and the Commonwealth's version of events during the critical two-day period surrounding Coleman's death agree on few details. Both begin with Appellant leaving Coleman's apartment around 10:00 a.m. on November 1. Appellant's actions, whereabouts, and mental state commencing with his departure from the apartment the morning of November 1 and concluding November 2 when Appellant parted company with Vermont Smith, were intensely contested by the parties. Once he left the apartment on November 1, Appellant maintained he never returned. With no eyewitnesses to Coleman's death or the identity of her killer, the Commonwealth put forward acase based on circumstantial evidence, claiming that not only did Appellant return to the apartment, but that he also murdered Coleman there.

According to his trial testimony, Appellant left the apartment on November 1 after Coleman went through his cellphone and found contacts with another woman. Later that day, Appellant called his friend Vermont Smith. Seeking to avoid another argument with Coleman and needing his clothes, Appellant asked Smith to retrieve the clothes from Coleman's apartment.

According to Appellant, he arrived at Smith's apartment around midnight November 1 after spending the day driving around aimlessly, smoking and selling marijuana. Smith had not retrieved his clothes from Coleman's apartment. Consequently, Appellant left Smith's apartment during the early morning hours of November 2. That day was spent the same way Appellant spent the previous afternoon: driving around and smoking and selling marijuana. Appellant unsuccessfully tried several times to reach Coleman by phone, and claims he only became aware of Coleman's death when he was arrested several days later.

Agreeing that Appellant left Coleman's apartment on November 1 around 10:00 a.m., the Commonwealth's timeline of events picked up with Coleman visiting her friend Moore at Moore's apartment at 3:00 p.m. Coleman spoke on the phone with her friend and co-worker, Danielle Vasquez sometime around 3:30 p.m. Toni Buttery, Coleman's mom who lived down the street from Coleman's apartment, testified to the most significant timeline eventoffered by the Commonwealth: Buttery saw Appellant coming out of Coleman's apartment building at 5:00 p.m.

At 6:00 p.m. on November 1, Coleman did not show up for work and did not call her employer. Vasquez testified that it was unusual that she did not receive a phone call from Coleman, because if Coleman was going to miss a shift, she always called. After unsuccessfully trying to locate Coleman for several hours, family and friends broke through the apartment door shortly after midnight on November 2 to find her lifeless body inside the apartment. The medical examiner, Dr. William Ralston, determined her cause of death was asphyxiation by strangulation.

The Commonwealth further disputed Appellant's alibi of time spent on November 1 casually driving around, smoking and selling marijuana. Bianca Rice, an ex-girlfriend and mother of Appellant's child, testified to receiving an emotional phone call from Appellant after 8:00 p.m. on November 1. During this brief call, Appellant claimed his life was over because he had "fucked up" so badly "there was no coming back" from it. Appellant instructed Rice to tell his daughter he loved her.

Appellant's call to Rice that evening was not his only emotional exhibition. Jessica Parks (Vermont Smith's girlfriend) and Smith confirmed Appellant arrived at Smith's apartment around midnight November 1. For the next few hours, Appellant repeatedly said to Smith, "I fucked up" and "she was going to take me back." Appellant described the argument between him and "her" after "she" found another woman's contacts on his phone. Appellant toldthem repeatedly that he was going to kill himself. He also said he choked "her," but never said who "she" was.

Parks joined the late-night conversation between Smith and Appellant. During that conversation, Appellant asked Parks if she knew "what death smelled like." In describing what she observed about Appellant in the early morning hours of November 2, Parks said he was drunk and not acting like himself. Parks testified that he repeatedly said "I loved her" and hit his head with his hands.

According to Smith, Appellant would pass most of November 2 with him. Appellant spent the night, left that morning, and returned during the day with Appellant's mother. Smith took Appellant's mother to an ATM to get money for Appellant. Following Smith's return from the ATM, he and Appellant went to Smith's daughter's house where Appellant washed some clothes. Contrary to Appellant's testimony, Smith claimed he and Appellant were together on November 2.

The Commonwealth called Bianca Rice as a rebuttal witness to refute Appellant's claims that he was never violent toward women and had never choked or abused any woman. During her rebuttal testimony, Rice testified that Appellant choked her on several occasions, including once to the point of her almost passing out. Rice's description of abuse suffered at Appellant's hand included him biting, hitting, and forcing her to have sex with him while pregnant with his child. Prior to being called as a rebuttal witness, Rice remained in the courtroom following her testimony about the November 1phone call from Appellant, and she watched several witnesses testify including Appellant. The trial court had ordered separation of witnesses at the start of trial.

At the close of evidence, Appellant tendered jury instructions to the court for lesser-included offenses of first- and second-degree manslaughter. The Commonwealth objected and argued no evidence supported the proposed instructions, especially since Appellant denied killing Coleman or even knowing she was dead for several days. The trial court denied the tendered instructions and did not instruct the jury on manslaughter. After being found guilty of intentional murder, Appellant was sentenced to life imprisonment.

Further background information will be developed as needed.

II. ANALYSIS

A. Lesser-included offense instructions

Appellant tendered written instructions for first- and second-degree manslaughter as lesser-included offenses of intentional murder which were denied by the trial court and are his first issue on appeal. The Commonwealth vigorously opposed any instruction other than intentional murder. The trial court acknowledged a duty to instruct on any offense supported by the evidence and made clear there had to be evidence in the record for that instruction. After reviewing the evidence and consideration of counsel's arguments, no support for the requested lesser-included instructions was ascertained by the trial court.

"In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." RCr 9.54(1); See also Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky...