Opinion
No. 1999-CA-001041-MR.
July 21, 2000.
Appeal from Jefferson Circuit Court, Honorable Geoffrey P. Morris, Judge, Action No. 98-CR-002207.
Kathleen A. Pakes, Daniel T. Goyette, Frank W. Heft, Jr., Louisville, KY, brief for appellant.
Frank W. Heft, Jr., Louisville, KY, oral argument for appellant.
A.B. Chandler, III, Attorney General, Elizabeth A. Heilman, Asst. Attorney General, Frankfort, KY, brief for appellee.
Elizabeth A. Heilman, Asst. Attorney General, Frankfort, KY, oral argument for appellee.
Before: GUIDUGLI, JOHNSON AND KNOPF JUDGES.
OPINION
Following a jury trial, the appellant, Damon English, was found guilty of two counts of robbery in the first degree (KRS 515.020), and sentenced to prison to serve two concurrent terms of fifteen years. Since we conclude that English was not deprived of his constitutional right to a fair trial (1) by the trial court's denial of his motion to strike a potential juror for cause; (2) by the trial court's refusal, during the penalty phase of the trial, to allow him to read to the jury a statement he had prepared; and (3) by the trial court's ruling which allowed the Commonwealth to impeach him with a prior juvenile adjudication, we affirm.
Kentucky Revised Statutes.
On July 21, 1998, as Larry Bishop's daughter dropped Bishop off at his place of employment, the Full Service Auto Garage in Louisville, Kentucky, she remarked to Bishop that she knew one of two men they observed walking near the garage. According to Bishop, the men came into the garage, ostensibly to inquire about having some brakes repaired, and Bishop told them to come back when the garage opened. Later that morning, after the arrival of the business's owner, Sylvester Anderson, the two men returned. One of the men was armed with a .22 caliber handgun. The men took over $3,000 in cash from Bishop and Anderson, and fled on foot. That same afternoon, Bishop identified English from a police photopack as the robber with the gun. At trial, Bishop's daughter testified that English was one of the men she had seen in front of the garage that morning.
English testified in his own defense and presented a different version of the events of that day. He told the jury that he had been at the Full Service Auto Garage that morning, but that he had gone there alone to check on the status of the repairs being made to his car which had been at the garage since March 1998. He claims that he obtained the keys to the car and, when he opened it, noticed that the stereo and speakers were missing from the vehicle. He testified that he, Bishop, and Anderson got into an argument about who was responsible for the missing stereo equipment. Unsatisfied with the explanation offered by Anderson and upset about the damage to his car, English testified that he took the car without paying the $1,200 owed for the repairs. English denied robbing the men or having a gun. The jury convicted English on both counts of robbery and recommended concurrent fifteen-year sentences, which were ultimately imposed by the trial court. This appeal followed.
English first alleges that he was deprived of a fair trial when, during voir dire, the trial court denied his motion to strike from the venire a juror employed as a corrections officer for the Jefferson County Corrections Department and who had previously worked for the State Department of Corrections at LaGrange. English, who subsequently used one of his peremptory strikes to remove this person from the jury, argues that "[b]ecause of his connection to the prosecution, and his position as a corrections officer, there is a reasonable probability this juror was biased and unable to sit on this jury." He further contends that the potential juror "simply did not have the mental attitude of appropriate indifference" necessary to serve as a juror. We do not find this argument to be persuasive.
Inexplicably, the record in this Court's possession does not include a tape of the first day of trial, February 2, 1999. However, there is no dispute that English preserved this issue for review and that he used all nine of his peremptory strikes, including one to remove the particular juror at issue.
It is a fundamental tenet in this jurisdiction that a criminal defendant "is entitled to be tried by a fair and impartial jury composed of members who are disinterested and free from bias or prejudice, actual or implied or reasonably inferred." The law requires that "[i]rrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses." There is no doubt that the trial court has broad discretion in performing its duty to ensure that the jury is impartial. The determination of whether to excuse a potential juror for cause, either for actual or implied bias, "`lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination.'"
Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 864 (1993) (quoting Tayloe v. Commonwealth, Ky., 335 S.W.2d 556, 558 (1960)).
Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985).
Tabor v. Commonwealth, Ky.App., 948 S.W.2d 569 (1997).
Sholler v. Commonwealth, Ky., 969 S.W.2d 706, 708 (1998) (quoting Commonwealth v. Lewis, Ky., 903 S.W.2d 524, 527 (1995)).
English does not contend that the alleged offensive juror displayed any actual bias or had a familial or financial relationship with any of the parties. Instead, he argues that bias on the part of the juror should be implied and the juror should have been struck for cause solely because of his situation/employment as a corrections officer. We believe English's argument in this vein is untenable considering our Supreme Court's reluctance to create a per se exclusion of jurors based on their employment in other areas of the criminal justice system. For example, in Sanders v. Commonwealth, the Supreme Court held that a juror's employment as a "law enforcement officer was not sufficient reason to excuse him for cause." More recently, in Sholler, supra, the Court found no error in the trial court's refusal to strike for cause a retired Secret Service agent, even though the agent admitted he was "very pro-law enforcement and that he placed substantial credence in police officers," and who acknowledged an acquaintance with one of the witnesses expected to testify. These opinions indicate an unwillingness by our highest Court to extend the doctrine of implied bias to require automatic exclusion of a potential juror for cause simply because he or she works in the law enforcement area. Thus, we hold that the trial court did not abuse its discretion in failing to remove a juror merely because he was employed as a guard in the correctional facility where the defendant was being held during the trial.
Ky., 801 S.W.2d 665, 670 (1990) (the juror was a member of the Berea Police Department and he was "acquainted with two of the three officers expected to testify for the Commonwealth").
Sholler, supra at 708.
Next, English contends that the trial court erred in refusing to allow him to read a personal statement to the jury during the penalty phase of the trial. While the record reveals that English did not read a statement, the record is also clear that he was not prevented from doing so by any ruling of the trial court. Under these circumstances, we agree with the Commonwealth's argument that error, if any, has not been properly preserved for our review.
See Kentucky Rules of Criminal Procedure (RCr) 9.22 and Tucker v. Commonwealth, Ky., 916 S.W.2d 181 (1996).
After taking the stand in the penalty phase of the trial, English stated to the jury that he would not take responsibility for the crimes committed against Bishop and Anderson and insisted, as he had during the guilt phase, that he had not robbed the two victims who identified him as their assailant. He then proceeded to read various passages from the Bible. After two to three minutes, the trial court said, "That's enough," and English asked if he could read "something else" he had written himself. The trial judge asked counsel to approach the bench at which time he stated to the prosecutor, "I'm sustaining your objection." The prosecutor replied, "I have no objection. . . I'd like him to read the whole Bible to them, it suits me fine." After a brief discussion between the trial court and the prosecutor, English's trial counsel expressed his agreement with the trial court that the Bible reading was inappropriate and stated that he had advised English not to take the stand and that he would ask English if he had any testimony in the nature of mitigation. The Commonwealth argues that under these circumstances, that is, the trial court having come to English's "rescue," to which English voiced no objection, he cannot now complain on appeal.
At this point, the trial court told the prosecutor that "when I object for you, it means you are not doing your job." The trial court also expressed concern about what the prosecutor was teaching his "young" co-counsel, to which the prosecutor replied, "I'm teaching him that when the defendant is making a fool of himself, to let him do it." The prosecutor reminded the trial court that he had not called English to the stand and that he was not responsible for his testimony.
After the bench conference, English was asked by his counsel if he had anything he would personally like to say to the jury concerning the sentence it would be imposing. English then made an articulate plea to the jury to impose the minimum sentence of ten years. In so doing, English reasoned that he had never been convicted of a violent crime, that he had never harmed anyone, and that he had stolen in the past only because he needed to eat. Since the written statement was not placed in the record by avowal for appellate review, we must assume that English decided that a spontaneous plea to the jury would be more effective than reading a prepared statement. In any event, the record simply does not support his argument that the trial court deprived him of the right to introduce evidence in mitigation or leniency as allowed by KRS 532.055(b).
Finally, English argues that the trial court erred in allowing the Commonwealth to impeach him during his testimony in the guilt phase with prior adjudications in juvenile court. In his cross-examination of English, the prosecuting attorney, W. Douglas Kemper, asked English if he had ever been convicted of a felony. English answered, "No." The prosecutor then asked to approach the bench and informed the trial court that English's answer was not accurate and that English had previously pled guilty to felony offenses in juvenile court. English's counsel objected to the prosecutor's request that he be allowed to impeach English by use of the juvenile court adjudications. The only basis asserted in support of this objection was that the statute permitting such use of the records, KRS 610.432(4), was enacted after English entered his pleas in juvenile court. The trial court overruled the objection and stated that the Commonwealth was entitled to use the juvenile court records to impeach English. The following exchange then transpired:
Mr. Kemper:
"Mr. English, do you recall being in juvenile court back in 1991, specifically, November 27, 1991, being in juvenile court, and admitting to certain offenses then?"
English:
"Juvenile? I can't recall. Could you enlighten me on it?"
Mr. Kemper:
"Sure. On November 27, 1991, being in juvenile court and admitting to two counts of theft by unlawful taking over $100?"
English:
"Oh, I was young back then."
Prosecutor:
"Do you deny that that happened?"
English:
"No. I don't deny it."
Mr. Kemper:
"Thank you, sir."
English:
"That's not a felony though, is it?"
Mr. Kemper:
"Judge, I . . .
The Court:
"Ladies and Gentlemen, ah, the current status of law —, when he entered a plea of guilty there was some question as it relates to being a felony conviction or not. At the present time, it's considered by this Court, that if a juvenile enters a plea to a felony charge in juvenile court its considered a felony, due to some recent changes in the statutory construction of what a "felony" is. . .
English:
[interpreting] "I didn't know."
The Court:
. . . so, he may have believed it not to be a felony and had certain grounds for that basis and belief back when he entered a plea at that time, but you were entitled to bring it up, Mr. Kemper, so go ahead and proceed.
The prosecutor then asked for an admonition, which the trial court gave, explaining to the jury that it was to use the evidence of the prior offenses only in assessing English's credibility.
There is no question that KRS 610.320(4) permits certain juvenile court records to be used for impeachment purposes. This statute, enacted in 1996, and which became effective in 1997, reads as follows:
Subject to the Kentucky Rules of Evidence, juvenile court records of adjudications of guilt of a child for an offense which would be a felony if committed by an adult shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to this section may be used for impeachment purposes during a criminal trial, and may be used during the sentencing phase of a criminal trial. However, the fact that a juvenile has been adjudicated delinquent of an offense which would be a felony if the child had been an adult shall not be used in finding the child to be a persistent felony offender based upon that adjudication.
We set out the above testimony and the trial court's interjection to address English's argument that it was "fundamentally unfair" for the trial court to allow him to be impeached with an adjudication that was not considered to be a felony at the time of the disposition of the charges against him in juvenile court. It is apparent to this Court that the trial court's sua sponte explanation to the jury that the law had changed, and its observation that English had a "basis" for his "belief" that he had not been convicted of a felony, cured any harm to English's credibility.
English also argues that KRS 610.320(4), should be declared unconstitutional for the reason that it "encroaches upon the [rule-making] powers of the Supreme Court." It is English's contention that the Legislature has changed KRE 609(a), the rule pertaining to impeachment of a witness who has been convicted of a crime, by enlarging the rule to apply to crimes other than those "punishable by death or imprisonment for one (1) year or more. . . ." English does not reveal where this issue was raised below or where it was addressed by the trial court, and we did not find any mention of this issue in our review of the record. Thus, the issue is not suitable for our review.
Kentucky Rules of Evidence.
See RCr 9.22 and Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 228 (1989); see also Jacobs v. Commonwealth, Ky.App., 947 S.W.2d 416 (1997). In a footnote, English also makes the assertion that this Court "must likewise rule KRS 532.055(2)(a)(6) unconstitutional" as it, "[l]ike KRS 610.320(4) is not subject to unilateral modification by the General Assembly." Again, we cannot find where this issue was preserved for review.
In any event, it is apparent to this Court that the Legislature has not attempted to amend KRE 609(a), but has merely changed the law with respect to the confidentiality of the juvenile court records of those who reoffend to allow the information in those records to be used for impeachment or sentencing purposes. Those protections enjoyed by juvenile offenders with respect to the confidentiality of their records are ones that have been afforded by the Legislature in the first place, not the judiciary. For this reason, we find no merit to English's argument that the statute violates the separation of powers doctrine. It is axiomatic that what the Legislature gives, it can take away.
See e.g., Board of Education of Bellevue v. Rothfuss, Ky., 639 S.W.2d 545, 547 (1982); Jacober v. Board of Commissioners of City of Covington, Ky.App., 607 S.W.2d 126 (1980).
Finally, we disagree with English that impeachment was improper because the Commonwealth neglected to establish that he "received a sentence within the range specified by KRE 609." Clearly, the rule's reference to crimes "punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted" refers to felony offenses, as defined in KRS 500.080(5). Although juvenile offenders are not, as English points out, subject to the same types of punishment as those imposed in adult courts for similar offenses, the "crimes" he was adjudicated as having committed were ones for which, had he been an adult, a sentence of at least one year could have been imposed.
This statute defines "felony" to mean "an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Department of Corrections may be imposed[.]"
In 1991, theft by unlawful taking over $100 (since 1994, $300) was a class D felony, with a penalty range of between one and five years.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.