CRIMINAL LAW – Crime of tampering w/evidence; juror challenge for cause; co-defendant statement: Christian Omar Walker v. Commonwealth of Kentucky (SC 6/25/2009)

Christian Omar Walker v. Commonwealth of Kentucky
2007-SC-000568-MR June 25, 2009
Opinion by Justice Scott. All sitting; all concur.

Walker appealed his conviction on charges of complicity to murder, complicity to firstdegree robbery, complicity to second-degree assault and complicity to tampering with physical evidence. Walker argued that his conviction must be reversed since the trial court refused to strike a potential juror for cause after he stated he would not consider the full range of penalties or all types of mitigating evidence. The Court disagreed, noting that the juror’s statement was made in response to a “worst-case” hypothetical question—the type disapproved of by the Court in Mabe—and that the potential juror had even qualified his response as pertaining only to the hypothetical question. The Court also upheld the trial court’s exclusion of a statement made by Walker’s co-defendant to the police—holding the statement was admissible neither under any of the hearsay exceptions proffered by Walker nor for the due process reasons articulated in Chambers.

However, the Court reversed Walker’s conviction on tampering with physical evidence. At the close of the Commonwealth’s proof, Walker moved for a directed verdict on the charge on the grounds that it was not supported by the evidence presented. The trial court sustained the motion, but at the close of all proof, the Commonwealth asked the trial court to reconsider, and the charge was reinstated. Walker argued that reinstatement of the charges amounted to double jeopardy. The Court agreed, citing the rule in Smith that an “acquittal must be treated as final if, after a facially unqualified mid-trial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence.”

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