Opinion
NO. 2010-CA-000836-MR NO. 2013-CA-000142-MR
04-19-2013
LARRY CARTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Richard M. Guarnieri Frankfort, Kentucky Thomas M. Ransdell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 09-CR-00194
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Larry Carter was convicted of second-degree escape and first-degree persistent felony offender (PFO), and sentenced to nineteen-years' imprisonment. We affirm Carter's conviction for second-degree escape, but reverse for a new penalty phase because inadmissible evidence was submitted to the jury.
In 2009, Carter was incarcerated at the Franklin County Regional Jail for civil contempt for failing to pay child support and, on April 29, 2009, was placed on work release. Under the terms of the work release, on work days Carter was entitled to leave the jail at 6:00 a.m. and required to return at 6:00 p.m. On June 3, 2009, after attending work in the morning and leaving for a scheduled appearance in Franklin County Family Court at 1:00 p.m., he did not return to work that afternoon or to jail at the assigned time. A warrant for his arrest was issued.
Carter was arrested and charged with escape in the second degree and PFO in the first degree. After a jury trial, Carter was found guilty of escape in the second degree. During the penalty phase, he was found to be a PFO in the first degree and the jury recommended a sentence of nineteen-years' imprisonment. The circuit court sentenced Carter in accordance with this recommendation.
Carter asserts the circuit court erred by: (1) excusing a juror for cause; (2) denying a motion for a directed verdict on the escape in the second degree charge; (3) failing to give an instruction on escape in the third degree as a lesser-included offense; (4) upholding an ambiguous verdict; (5) allowing inadmissible evidence to be admitted in the penalty phase; and (6) failing to follow the proper process during the penalty phase. The claimed errors of wrongly excusing the juror and failing to give an instruction on the lesser-included offense were preserved. Carter's remaining claims of error were not preserved.
Carter also challenged his conviction because the judgment and sentence erroneously omitted the jury's finding of guilt on the PFO charge. This issue was resolved through an order of this Court remanding the case to the circuit court for correction of this clerical error and the entry of an amended judgment and sentence. The entry of the amended judgment is the basis for the 2013 appeal, which was consolidated with the 2010 appeal.
Carter argues that the circuit court erred in striking a juror for cause. We review the circuit court's striking of a juror for cause under the abuse of discretion standard. Adkins v. Commonwealth, 96 S.W.3d 779, 795 (Ky. 2003). Challenges for cause shall be granted "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence." RCr 9.36(1). The Kentucky Supreme Court has explained when a juror should be excused for cause:
Kentucky law holds that a trial court's decision on whether to strike a juror for cause rests in the sound discretion of the trial court. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002). In making such a determination, the court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor. Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007)]. Where the trial court determines that a juror cannot be impartial, RCr 9.36 requires a judge to excuse that juror. RCr 9.36 is mandatory, and provides no room for a trial court to seat a juror who demonstrates his or her inability to be fair. Generally, the impartiality of a juror manifests itself as a state of mind, and not simply through the juror's responses to questioning, although that possibility certainly exists. United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936); Pennington v. Commonwealth, 316 S.W.2d 221 (Ky. 1958). Indeed, a juror may indicate that he or she can be impartial, but may demonstrate a state of mind to disprove that statement "by subsequent comments or demeanor so substantially at odds that it is obvious theMcDaniel v. Commonwealth, 341 S.W.3d 89, 92-93 (Ky. 2011) (footnote omitted).
[trial court] has abused [its] discretion in deciding the juror is unbiased." Shane, 243 S.W.3d 336, 338. In contrast, an individual may flatly and blatantly demonstrate his inability to be impartial and fair, and "no magic question" can rehabilitate his impartial state of mind. Id.
During voir dire, the Commonwealth asked the jury pool whether anyone had any possible bias against the Franklin County Regional Jail. The juror at issue stated that based upon negative experiences of his son-in-law and one of his best friends who allegedly had money stolen by jail personnel after their arrest, he believed the jail personnel "were all a bunch of crooks." Although the juror stated that he would try to be impartial, he expressed some reservation about his ability.
The circuit court was in the best position to view this juror's demeanor and determine whether his answers were consistent being able to render an impartial decision. We cannot conclude that the court abused its discretion in excusing the juror for bias. Pendleton, 83 S.W.3d at 527.
Carter next contends that he was entitled to a directed verdict on the second-degree escape charge. We disagree.
We review the circuit court's ruling on a motion for a directed verdict as follows: "If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal." Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977)).
A person may commit second-degree escape under KRS 520.030(1) by "either (1) escaping from a detention facility, or (2) escaping from custody while charged with or convicted of a felony." Lawton v. Commonwealth, 354 S.W.3d 565, 570 (Ky. 2011). Failure to return to a county jail following temporary leave for work constitutes second-degree escape. Land v. Commonwealth, 366 S.W.3d 9, 10 (Ky.App. 2012); Reynolds v. Commonwealth, 113 S.W.3d 647, 650 (Ky.App. 2003); KRS 520.010. Jury instruction four specified that Carter could only be convicted if the jury found that Carter was in the custody of the Franklin County Regional Jail, escaped by failing to return to its custody and the jail constituted a detention facility. Because the Commonwealth could prove all the elements of second-degree escape without proving that Carter had been charged with or convicted of a felony, Carter was not entitled to a directed verdict. Land, 366 S.W.3d at 10; Commonwealth v. Johnson, 615 S.W.2d 1 (Ky.App. 1981).
We also reject Carter's contention that he was entitled to an instruction on third-degree escape as a lesser-included offense of the second-degree escape charge.
"A court is required to instruct a jury on all offenses that are supported by the evidence." Clark v. Commonwealth, 223 S.W.3d 90, 93 (Ky. 2007). But a defendant is only entitled to an instruction on the lesser offense if the jurors could rationally find that he was not guilty of the primary offense (here, second-degree escape), but guilty of the lesser offense (here, third-degree escape). Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky. 1987).Lawton, 354 S.W.3d at 576.
In contrast to second-degree escape, third-degree escape is proven by demonstrating that a person escaped from custody without regard for whether that custody was in the form of a detention facility or another type of custody, and without regard to why the person was in custody. KRS 520.040(1). When the jury convicted Carter of second-degree escape, it had to determine that he was in the custody of the jail when he escaped. The jury could not rationally find that he was in custody in order to convict him of third-degree escape without also convicting him of second-degree escape. For this reason, the circuit court did not err in denying Carter's request for an instruction on third-degree escape as a lesser-included offense because the evidence did not support such an instruction.
Carter's next claim is that the verdict on his escape charge was ambiguous because the verdict found him guilty of escape under instructions three and five, but the only instruction relating specifically to the charged offense was instruction four. He claims that the circuit court erred by upholding an ambiguous verdict.
Because Carter failed to object to this verdict as ambiguous, this issue was waived as explained in Beaty v. Commonwealth, 125 S.W.3d 196, 215 (Ky. 2003):
It is well established in Kentucky that a failure to object to a verdict that is inconsistent, ambiguous, or otherwise unclear constitutes a waiver for purposes of appeal. E.g., Foster v. Commonwealth, Ky., 507 S.W.2d 443, 445 (1974); Prince v. Commonwealth, Ky.App., 576 S.W.2d 244, 246 (1978). There are only three exceptions. The first two were established in Smith v. Crenshaw, Ky., 344 S.W.2d 393 (1961), in which our predecessor Court held that it would consider a claim on appeal despite a failure to object before the jury has been discharged when (1) "the verdict fails to determine a particular claim;" or (2)Carter's situation does not fit within any of the exceptions set out in Beaty. The jury's verdict addressed the one charge before it, the verdict was not so ambiguous as to put in doubt what the conviction was, and there was no substantive error raised before the circuit court. Id. at 216. Accordingly, this error is waived.
the verdict "is so ambiguous that it cannot be ascertained what determination has been made of the claim." Id. at 395; see also Franklin v. Commonwealth, Ky., 490 S.W.2d 148, 151 (1972) (finding verdict "patently unintelligible and impossible for the trial court to interpret without speculation"). We recognized the third exception in Caretenders, Inc. v. Commonwealth, Ky., 821 S.W.2d 83 (1991), holding that we will also address such a claim if it both (1) alleges a "substantive" error, and (2) was raised before the trial court, albeit sometime after the jury was discharged, such as in a motion for a new trial. Id. at 85. In all other circumstances, a complaint about the consistency, ambiguity, or clarity of the verdict is waived if not raised while the jury remains empaneled.
We review Carter's remaining claims for palpable error. An unpreserved error must affect substantial rights, be palpable, prejudicial and result in a manifest injustice in order for an appellate court to grant relief. RCr 10.26; Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009). "Generally, a palpable error 'affects the substantial rights of a party' only if 'it is more likely than ordinary error to have affected the judgment.'" Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (quoting Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005)). The error will only justify relief if "the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable'" and there is a substantial possibility that, but for the error, the result of the trial would have been different. Id. at 695-696 (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).
Carter argues that the circuit court committed palpable error by improperly allowing evidence of other crimes for which he was not convicted to be admitted in the Commonwealth's exhibits in support of the first-degree PFO charge. The Commonwealth introduced exhibits five, six and seven to establish that Carter had the qualifying predicate felony offenses to be convicted of being a PFO: Possession of a handgun by a convicted felon (exhibit five), second-degree assault (exhibit six) and second-degree robbery (exhibit seven). However, the exhibits also contained indictments on charges for which Carter was not convicted.
At sentencing, the jury was required to consider Carter's prior felony convictions to determine his appropriate sentence on his underlying crime, whether he was a PFO and an appropriate sentence. See KRS 532.055; KRS 532.080; Cuzick v. Commonwealth, 276 S.W.3d 260, 263 (Ky. 2009). Under KRS 532.055(2)(a) the Commonwealth was authorized to offer evidence at the sentencing hearing establishing Carter's prior convictions and "[t]he nature of the prior offenses for which he was convicted[.]" This statute does not allow the introduction of evidence on prior charges subsequently dismissed, set aside or amended. Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996); Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004); Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012).
Exhibits five through seven contained indictments, offers on plea of guilty, guilty pleas, judgments and sentences. Every indictment in evidence contained charges that were either amended or dismissed and, therefore, inadmissible under KRS 532.055(2)(a). The Commonwealth concedes that it was improper for evidence of non-convicted crimes to be admitted, but argues that its admission does not constitute palpable error because the seriousness of Carter's actual criminal record justified the sentence imposed.
The admission of inadmissible evidence at sentencing can constitute a palpable error if it affected the sentence imposed. In Blane, 364 S.W.3d at 152-153, the Court found the error of admitting prior dismissed charges palpable because the original charges were emphasized to the jury, and the jury imposed the maximum sentence.
The Commonwealth placed particular emphasis on exhibit six. In discussing exhibit six during its closing argument, the Commonwealth referenced the original indicted charge for which Carter was not convicted. "You'll see that although he was convicted of assault in the second degree that was an amended charge. You'll see what he was, what he actually did and what he was charged with doing when you read those documents." The Commonwealth urged the jury to carefully consider the exhibits and to impose the maximum PFO sentence based on Carter's criminal record and propensities. The indictment in exhibit six stated that "[Carter] committed the offense of Unlawful Transaction with a Minor, first-degree, when he induced and caused a minor to engage in illegal sexual activity by giving money to a minor and then digitally penetrating her vaginal area." The Commonwealth urged the jury to consider the indicted offense, rather than the convicted offense of second-degree assault in determining what sentence would be appropriate.
Notably, Carter's PFO sentence could have been between ten and twenty years. KRS 532.080(6)(b). Thus, Carter's nineteen-year sentence was almost the maximum allowable sentence.
Because it appears that Carter's substantive right to due process was compromised, we reverse and remand for a new penalty phase. Blane, 364 S.W.3d at 153. In Mullikan v. Commonwealth, 341 S.W.3d 99, 108-109 (Ky. 2011), the Kentucky Supreme Court reviewed its past difficulties in providing a workable rule for courts to follow in determining what evidence of prior crimes could be admitted at the sentencing phase. The Court then established a bright-line rule by holding that "the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed." Id. at 109. It also offered suggestions for how this might best be accomplished. Id.; Webb v. Commonwealth, 387 S.W.3d 319, 330-331 (Ky. 2012).
Carter's final argument is that the circuit court failed to follow the proper procedure specified in Commonwealth v. Reneer, 734 S.W.2d 794, 798 (Ky. 1987), for imposing a PFO sentence in which the jury is instructed to "(1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender." The circuit court should have instructed the jury in accordance with the procedure set out in Reneer, but its failure to do so is not palpable error. Owens v. Commonwealth, 329 S.W.3d 307, 319-320 (Ky. 2011); Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009); Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991). Because we are remanding for a new penalty phase, the Reneer procedure should be followed on remand.
Accordingly, we affirm Carter's conviction for escape in the second degree. We reverse the PFO conviction and sentence and remand for a new penalty phase. Only Carter's prior convictions and the information allowed by Mullikan shall be admitted, and the jury shall be instructed in accordance with the Reneer procedure.
ALL CONCUR. BRIEFS FOR APPELLANT: Richard M. Guarnieri
Frankfort, Kentucky
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky