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RENDERED : DECEMBER 20, 2007 TO BE PUBLISHED

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2005-SC-000343-MR

V.

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE STEPHEN P. RYAN, JUDGE NO. 02-CR-001558-002 APPELLEE

COMMONWEALTH OF KENTUCKY OPINION OF THE COURT BY JUSTICE NOBLE REVERSING

Appellant, DeShawn Parker, was convicted of one count of murder, two counts of criminal attempt to commit murder, second-degree assault and tampering with physical evidence, and was sentenced to an aggregate, concurrent 25 year term of imprisonment . On appeal he claims that his constitutional rights to a speedy trial were violated ; that the trial court abused its discretion in denying a motion for a mistrial following the playing of a rap CD by the Commonwealth in opening statement which was later not admitted ; that the Commonwealth was erroneously permitted to introduce prejudicial evidence of gang activity without proper pretrial notice ; that the trial court allowed the Commonwealth to erroneously introduce unsworn out-of-court statements of witness Shamekia Wright; that the trial court failed erroneously to instruct the jury on the lesser included offense of second-degree manslaughter; and that the trial court erroneously denied Appellant's motion for a directed verdict on tampering with physical evidence . Because the trial court erred in allowing the playing of the rap CD in opening

statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition, we reverse and remand for a new trial. Further, under the facts of this case, Appellant was entitled to an instruction on second-degree manslaughter, and the murder conviction could be reversed on that ground alone . Other claims of error will be rectified by retrial . 1. Background Laknogony McCurley was shot to death during the early morning hours of July 31, 2000, during an ongoing feud between two rival West End Louisville gangs. The Appellant, DeShawn Parker, who was indicted with five other codefendants, was a member of the gang "Victory Park Crips," sometimes also known as the "Rat Pacc ." The rival gang was known as the "Southwick Bloods ." Appellant and two others were riding in a vehicle driven by Marcus Stallard, allegedly on their way to kill two of the Bloods . The victim, McCurley, a girlfriend of one of the Bloods, was in the vehicle of the Bloods at the time of the drive-by shooting . Testimony indicated that Stallard pulled his vehicle alongside the Bloods' vehicle and that Appellant and the two passengers opened fire at the other car, with Appellant firing across Stallard toward the other vehicle, and then they drove away. McCurley was shot six times and died as a result . Another passenger in the Bloods' vehicle was shot but survived . At trial Appellant presented no proof, and the trial resulted in the convictions that are the subject of this appeal. 11. Use of Rap CD in Opening Statement Before trial, Louisville police officers came into possession of a rap CD allegedly made by Appellant, his brother Kenneth, and "Two Tom" Taylor. The three charged an officer five dollars for the CD. The trial court allowed the CD to be played during the

Commonwealth's opening statement over the objection of Appellant, but warned the Commonwealth that if the CD was not admitted during trial that the Appellant would be entitled to a mistrial . The Commonwealth Attorney asserted a "good faith belief"that statements on the CD would constitute "adoptive admissions" by Appellant, and during opening, commented that the Crips rapped about a violent act they committed on July 31, 2000. After playing the CD, the Commonwealth commented further that the lyrics said "shot the bitch at close range" and "remember the 31 St ." Later during the trial when the Commonwealth offered the CD into evidence, the trial court excluded it because it could not be properly authenticated or construed as adoptive admissions . Appellant moved for a mistrial, reminding the trial court that it had said a mistrial would be warranted if the CD proved inadmissible when he had objected to the CD being played in opening statement. Instead, the trial court elected to admonish the jury to totally disregard the CD . However, this was done in a somewhat unorthodox way: the admonition was given at the close of one day and again at the beginning of the next . After the first admonition, the trial court allowed the jurors to respond openly as to whether they could disregard the CD. All nodded that they could . The next day, after telling the jury that it understood how difficult it was to respond truthfully in front of the other jurors, the trial court instructed the jury to make a private written response as to whether each could disregard the CD . All again said they could . In making these admonitions, the trial court repeatedly referenced the CD, obviously trying valiantly to ensure that the jury understood it should not be considered as evidence. The motion for mistrial was then denied . While a mistrial is disfavored, the trial court retains broad discretion to determine whether a mistrial is necessary and appropriate . Gosser v. Commonwealth, 31 S.W.3d

897, 906 (Ky. 2000) . Nevertheless, one should be granted where there is a serious error such that a mistrial is a manifest or urgent necessity. Id. ; Commonwealth v. Scott, 12 S .W.3d 682 (Ky. 2000). This case presents two issues regarding use of the CD, both of which are preserved . First, Appellant objected to the use of the CD during the Commonwealth's opening statement. Second, he objected to any admissibility of the CD in the Commonwealth's case in chief. Based on the record, it was error to use the CD in either instance . Over the last several years, the scope of statements made during opening remarks has expanded considerably . The purpose of opening statement is to outline for the jury what the proponent expects his proof to be. Fields v. Commonwealth, 12 S.W.3d 275, 281 (Ky. 2000) ("The only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced ."); Co-De Coal Co. v. Combs, 325 S.W.2d 78, 79 (Ky. 1959) ("An opening statement of counsel is prefatory to introducing evidence. Its purpose or function is merely to inform the judge and the jury in a general way of the nature of the case and the issues involved, particularly to outline what the attorney's client expects to prove ."). In aid of that, charts, photographs and other demonstrative materials are used to explain the proposed testimony . The obvious problem with using various materials in the opening statement is that they have not been properly admitted into evidence at that point . Thus, use of evidence in opening statements must be limited generally, and use of evidence like that in this case simply is not allowed . See Fields, 12 S .W .3d at 281 ("While we have allowed prosecutors to display admissible items of real evidence to the jury during opening statement, we have never sanctioned

the playing of a witness's prerecorded testimony during opening statement, much less a witness's prerecorded unsworn statement." (citations omitted)). The same is true about commentary made by counsel that is not later supported by evidence admitted into the record. If the materials or commentary go beyond a brief explanation, a great risk is created that a mistrial may become necessary. While there is certainly the temptation to advance one's argument at the beginning of the trial so that the jury understands not only what the testimony is expected to be, but the proponent's theory of the case as well, this is not the intent of opening statement, and pushing the envelope results in error such as occurred here. In playing the CD during opening statement and in telling the jury what it purported to say, the Commonwealth placed unauthenticated evidence before the jury. As the trial developed it became apparent that the Commonwealth could not establish the meaning of the words, or even what they were, through witnesses, nor could the Commonwealth prove who made the CD, or whether the Appellant was actually connected to it. In short, the Commonwealth was able to tell the jury that the CD referred to the Appellant having committed the murder of which he was accused, and that he was bragging about it through the CD recording (which was clearly prejudicial) even though the CD could not be sufficiently authenticated to be admitted into evidence . Obviously the Appellant had no ability to cross-examine regarding this information or to otherwise properly defend against it. By using unauthenticated materials in opening statement the Commonwealth unfairly exposed the jury to inflammatory information of such a nature that no admonition could reasonably be believed to cure it. This case falls squarely within the parameters of Johnson v. Commonwealth , 105 S.W.3d 430 (Ky. 2003). In Johnson , this Court found that "the presumptive efficacy

of an admonition falters when there is an overwhelming probability that a jury cannot follow the admonition" about evidence devastating to the defendant, or when the evidence is without a factual basis and is inflammatory or highly prejudicial. A rap song bragging about committing a violent murder that is ascribed to a defendant, along with the inferential fears about gang activity, is clearly inflammatory and certainly becomes prejudicial if it cannot be properly linked to that defendant . While the trial court went to some length here to obtain statements from the jury that each would disregard what they had heard on and about the CD, the inflammatory nature of the improper evidence is such that, even with the best intentions in the world, the jury cannot be expected to truly disregard it. While curative admonitions are strongly favored, the Court in Johnson enunciated the necessary exceptions, as this case demonstrates . This Court is stopping short today of saying that no aids or materials may be used in opening statement. However, it is necessary that when evidentiary materials are used, they must at least be authenticated or their admissibility determined before their use. Likewise, commentary should be linked to that which can be supported by the evidence reasonably expected to be admitted . Otherwise, a mistrial is invited when an admonition may not be able to cure the error. The trial court must be the gatekeeper for the proper use of materials not yet admitted into evidence in the opening statement. To fail to do so is an abuse of discretion, and in this case requires reversal and remand for a new trial . III . Second-Degree Manslaughter Instruction At trial, Appellant tendered an instruction on second-degree manslaughter which the trial court declined to give to the jury. The trial court instructed the jury that it could find the Appellant guilty of either intentional or wanton murder. Intentional murder was

defined under instruction number 1, and wanton murder was defined under instruction number 1 A. The jury found the defendant guilty of wanton murder under instruction 1 A. Appellant now argues that it was reversible error to fail to give a second-degree manslaughter instruction as a lesser-included offense . This Court agrees . The trial court has the responsibility of determining which instructions are appropriate to present to the jury. Inherent in that task is analyzing what the evidence will support, viewed from every possible outcome that has an evidentiary basis. It is the jury that must apply the instructions to the facts as they believe them to be. The trial court must not enter into that realm, if it can be determined that under any possible construction of the facts different results could be obtained . In certain circumstances, a trial court may be able to determine that, as a matter of law, only one interpretation of the facts could be reached by any reasonable jury. For example, if all the evidence supports an intentional act, and the defendant does not present a defense or presents an alibi defense, then the court could only properly instruct on intentional murder, as presented in William S. Cooper and Donald P. Cetrulo, Kentucky Instructions to Juries, Criminal

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