Opinion
NO. 2019-CA-000592-MR
05-15-2020
TIM S. COFFMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 17-CR-00245 OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Tim S. Coffman ("Appellant") appeals from a judgment of the Bell Circuit Court reflecting a jury verdict finding him guilty of several criminal offenses including possession of a controlled substance and assault. Appellant argues that he was denied his right to a fair trial when the Commonwealth told the jury pool that they did not have to answer certain questions in open court; that his convictions for resisting arrest and assault constitute double jeopardy; and that the jury heard false information about parole eligibility which tainted its sentencing recommendation. For the reasons addressed below, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On May 3, 2017, the Bell County Grand Jury indicted Appellant on charges of resisting arrest, possession of a controlled substance in the first degree, public intoxication, sexual abuse in the first degree, assault in the third degree, and assault on a service animal. The charges arose from an incident occurring on May 8, 2016, when Appellant was observed at a residence sexually abusing an adult female victim who has physical and mental disabilities. The victim's mother, Francine Moore, saw Appellant dancing closely and rubbing against the victim while squeezing her breasts. Appellant was highly intoxicated and his genitals were exposed. Moore pushed Appellant away from the victim, and Appellant threw Moore against a stove. Leonard Hatfield jumped on Appellant, after which Appellant struck him and broke his nose.
Kentucky Revised Statutes ("KRS") 520.090, KRS 218A.1415, KRS 525.100, KRS 510.110, KRS 508.025, and KRS 525.205.
According to the record, the 27-year-old victim has scoliosis, cerebral palsy, and Down syndrome, and has the mental capacity of an 8-year-old child.
Moore called Johnny Thomas, who came to the residence. According to Thomas, Appellant was acting out of control and was yelling, screaming, and punching the wall. Thomas called the Bell County Sheriff's Department to report Appellant's intoxication and sexual abuse.
Bell County Sheriff's Deputy Joel Quillen and Officer Jason Williams of the Pineville Police Department arrived at the residence sometime after the call was dispatched at 3:12 a.m. They observed Appellant apparently sleeping in the back of a truck. When they attempted to wake him, Appellant became combative. Appellant began violently fighting, swinging his fists, and kicking. Officers deployed a Taser two times with no effect, and used pepper spray. Deputy Quillen released his K-9 unit "Jax" who bit Appellant on the leg. Appellant kicked Jax in the dog's side and face. The two officers and two witnesses then restrained Appellant, who was placed in handcuffs and arrested. Appellant was searched and found to be in possession of a small quantity of methamphetamine. He remained combative while being transported to the hospital via EMS for treatment of the dog bite and assessment of his mental state.
The matter proceeded to trial on January 8, 2019, after which the jury returned a verdict of guilty on all counts. The trial court sentenced Appellant in accordance with the jury's recommendation to three years on each of the four felonies, to run consecutively for a total sentence of 12 years in prison. Appellant was also assessed costs and fees. This appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that he was deprived the fair trial to which he was entitled under the 6th and 14th Amendments to the United States Constitution. He maintains that this deprivation occurred when the Commonwealth told the jurors during voir dire that they did not have to answer certain questions in open court. Appellant directs our attention to the following statement made by the Commonwealth to the jury pool:
To those who have already answered the questions, if your answer has changed make sure I see your hand. But if you've answered particularly on some of the more awkward questions that are difficult to answer in terms of being a little bit awkward, if you answered the last time I made a note of your answer. So don't feel like you have to repeat it. But if you forgot something . . . then raise your hand.
Appellant argues that this language runs afoul of Fields v. Commonwealth, 274 S.W.3d 375, 392 (Ky. 2008), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010). In Fields, the Kentucky Supreme Court held that, "[a] central purpose of voir dire is to give the trial court the opportunity to visually observe the demeanor and affect of a potential juror." Id. Appellant contends that the Commonwealth's statement improperly deprived the trial court of seeing the answers of the jurors in open court and deprived defense counsel and Appellant of seeing and hearing the answers of jurors. In Appellant's view, the Commonwealth's statement contradicted the directions the trial court gave the jurors to answer the questions posed to them by the parties, and as such is reversible error. He acknowledges that this issue is not preserved for appellate review and requests that it be considered under the palpable error standard.
We review unpreserved claims of error under the palpable error standard. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006), as modified (May 23, 2006).
A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Kentucky Rules of Criminal Procedure ("RCr") 10.26. "Under this rule, an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial." Martin, 207 S.W.3d at 3 (quoting Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).
Having closely examined the record and the law, we conclude that there is no substantial possibility that the Commonwealth's statement to the jury pool altered the outcome of the proceeding. In Fields, upon which Appellant relies, the Kentucky Supreme Court concluded that the trial court acted within the scope of its discretion during voir dire in: 1) denying the use of defense counsel's proposed juror questionnaire; 2) denying Fields' motion to ask four questions about the death penalty; 3) refusing to allow alternate questioning of potential jurors; and 4) refusing to grant additional peremptory challenges. The overarching principle espoused in Fields was that the trial court may properly exercise its discretion in voir dire to maintain control of the proceedings. The facts before us are distinguishable from those of Fields. Fields does not lead to the conclusion that there is a substantial possibility the outcome of Appellant's trial would have been different but for the Commonwealth's statement to the jury pool. We find no error.
Appellant next argues that his convictions for resisting arrest and assault in the third degree constitute double jeopardy and violate KRS 505.020, which provides that a person may not be convicted of more than one offense when one offense is included in the other. Inclusion in this context is found when one offense "is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" KRS 505.020(2)(a).
Appellant acknowledges that the police officers and two witnesses testified that Appellant struck the two officers as they were attempting to arrest him. As such, he asserts that the Commonwealth improperly carved out two offenses—assault and resisting arrest—from the same bad act because the proof required to establish one offense is the same or less than the proof required to prove the commission of the other offense. Appellant notes that this issue is not preserved for appellate review, but citing Montgomery v. Commonwealth, 505 S.W.3d 274, 279 (Ky. App. 2016), contends that the constitutional protection against double jeopardy is not waived by the failure to object at the trial level. Appellant is correct that failure to object to a double jeopardy violation does not waive the issue on appeal. Id.
In Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996), the Kentucky Supreme Court acknowledged the double jeopardy analysis set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and codified in KRS 505.020. The dispositive question is "whether the act or transaction complained of constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of a fact the other does not." Burge, 947 S.W.2d at 811 (citation omitted).
When applied herein, we see that each charge required proof of a fact the other did not. The charge of resisting arrest is proved when a person intentionally prevents or attempts to prevent a peace officer from effectuating an arrest by using or threatening to use physical force, or by any other means creating a substantial risk of physical harm to the peace officer or another. KRS 520.090. In contrast, assault in the third degree is established when the actor recklessly or intentionally causes or attempts to cause physical injury to a peace officer. KRS 508.025. The resisting arrest statute requires proof of an attempt to prevent an arrest, which is not found in the assault statute. The assault statute, however, requires proof of an attempt, or threat of an attempt, to cause injury to a police officer - an element not found in the resisting arrest statute. As each statute sets forth at least one element not found in the other, there was no double jeopardy or violation of KRS 505.020. We find no error.
Lastly, Appellant argues that the jury improperly heard incorrect information about parole eligibility, which tainted its sentencing recommendation. He contends though the Commonwealth told the jury that Appellant would be eligible for parole after serving 15% of his sentence on each charge, it failed to tell the jury that his eligibility would rise to 20% if the aggregate of the two sentences was over five years. Appellant argues that this improperly tainted the jury's deliberations, and it entitles him to a remand for new sentencing. He again acknowledges that this issue was not preserved, and requests palpable error review.
The Commonwealth concedes the facts asserted by Appellant, but contends that if this is construed as error it is harmless and not so substantive as to constitute palpable error. It notes that it gave the jury Commonwealth's Exhibit 3, which was a document referred to as "Kentucky Department of Corrections Certification on the calculation of parole eligibility." This document apparently was a chart with the appropriate pages marked to assist the jury in determining the appropriate sentencing recommendation. The Commonwealth also contends that Appellant's assertion is wholly speculative and self-serving, as there is no basis for concluding that the jury would have recommended a different sentence, nor that the trial court would have adopted such recommendation, absent the distinction between 15% and 20% service for parole eligibility.
This document is not included in the appellate record. --------
We find persuasive the Commonwealth's contention that Appellant's argument on this issue is speculative and does not rise to the level of palpable error. In his written argument, Appellant acknowledges that the jury "might have" recommended a lesser sentence had it understood the distinction between 15% and 20% service before parole eligibility. The corollary, however, is that a resentencing might also result in an increased sentence of up to 18 years in prison. Because these determinations are purely speculative, we cannot reasonably conclude that the distinction between a 15% and 20% service of sentence rises to the level of palpable error required to remand the matter for a new sentence.
CONCLUSION
The Commonwealth's statement to the jury pool regarding the questions it had to answer did not deprive Appellant of a fair trial. Further, Appellant was not subjected to double jeopardy upon being charged concurrently with resisting arrest and assault in the third degree. And finally, the Commonwealth's statement to the jury regarding parole eligibility, while not wholly correct, did not rise to the level of palpable error and manifest injustice requiring resentencing. Accordingly, we find no error and affirm the judgment of the Bell Circuit Court.
DIXON, JUDGE, CONCURS.
CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CALDWELL, JUDGE, DISSENTING: This case presents three distinct issues for our determination. I agree with the majority that the direction from the Commonwealth, during voir dire, to the jury pool that they did not have to answer certain questions in open court did not rise to the level of a manifest injustice to be reversed under the palpable error rule.
I also agree with the majority that there was no double jeopardy in violation of KRS 505.020. Not only do resisting arrest and assault in the third degree each require proof of an element not found in the other, they also do not need contradictory facts to both be proven.
However, on the issue of incomplete testimony during the penalty phase, I dissent. This issue was also not preserved for review by contemporaneous objection, and thus, the Appellant requests review for palpable error under RCr 10.26.
The use of incorrect, or false, testimony by the prosecution is a violation of due process when the testimony is material. Napue v. Illinois, 360 U.S. 264, 269, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is true irrespective of the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). When the prosecution knows or should have known that the testimony is false, the test for materiality is whether "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005), as modified on denial of reh'g (Jan. 19, 2006).
The palpable error standard exists to allow appellate courts to ameliorate those instances of prejudice they identify, but for which no relief was sought below. The prejudice at hand must be substantial, having satisfied a harmlessness review.
For an error to be palpable, it must be "easily perceptible, plain, obvious and readily noticeable." A palpable error
"must involve prejudice more egregious than that occurring in reversible error[.]" A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations omitted).
I agree with the Appellant that the testimony about parole eligibility was prejudicial in that it was incomplete. While telling the jury of Appellant's parole eligibility after serving 15% of his sentence for each charge is not inaccurate, it is incomplete. The majority finds persuasive the Commonwealth's argument that there is no basis for concluding that the jury would have recommended a different sentence absent the distinction between 15% and 20% service for parole eligibility. However, there is also no basis for concluding that the jury would not have recommended a different sentence as well. However speculative, it is quite possible that had the jury been told that should the sentences be aggregated to more than five years, the Appellant would only be parole eligible after completing 20% of his term that the jury may have recommended lesser sentences. Thus, I cannot say that this error was not prejudicial. Loss of liberty is serious and should never be lost unwittingly and without specific intention. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky