Opinion
NO. 2012-CA-000403-MR
07-03-2014
JOHN GOROSTIZA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 11-CR-00007
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. ACREE, CHIEF JUDGE: Appellant, John Gorostiza, appeals from the judgment of the Ballard Circuit Court entered upon a jury verdict convicting him of second-degree assault, tampering with evidence, and being a first-degree persistent felony offender (PFO). He contends reversal of his conviction is warranted due to several erroneous trial rulings by the circuit court. We disagree and affirm.
I. Facts and Procedure
Gorostiza and the victim were involved in a relationship for several years. On January 13, 2011, a few months after their relationship ended, the victim went to work at Cigarettes for Less in Wickliffe, Kentucky. Around 9:30 a.m., the victim saw Gorostiza circling the store in a white truck. As Gorostiza entered the store, he put on a ski mask and the victim pressed the silent alarm to alert police. As the victim attempted to use her cell phone to call for help, Gorostiza grabbed the phone away from her and a struggle ensued. The cell phone was not recovered. Gorostiza verbally threatened the victim and then struck her in the head with an extendable club. After beating her, Gorostiza dragged the victim by the hair into the store's bathroom. Gorostiza then left the store.
A deputy sheriff arrived on the scene a few minutes later and found the victim with blood on her head and on the floor. Blood was also found in the bathroom and pooled under a mat behind the counter. The victim stated that Gorostiza had assaulted her. The victim received medical attention at the scene and was taken to the hospital for further treatment.
The county sheriff went to Gorostiza's residence and persuaded him to come to the sheriff's office for questioning. Gorostiza was advised of his Miranda rights. Gorostiza denied being at Cigarettes for Less on the morning of the attack and denied assaulting the victim. After his alibi was disproven, Gorostiza was arrested. Later testing revealed that the victim's blood was found on the clothes Gorostiza was wearing at the time of his arrest.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Ballard County Grand Jury indicted Gorostiza on one count each of: (1) second-degree assault, (2) first-degree possession of methamphetamine, second or greater offense; (3) possession of drug paraphernalia; (4) tampering with physical evidence; (5) first-degree PFO; and (6) first-degree robbery. The methamphetamine possession and drug paraphernalia charges were dismissed. Following trial, a jury found Gorostiza guilty of second-degree assault, tampering with physical evidence, and being a first-degree PFO. The jury acquitted on the robbery charge. Gorostiza received a total sentence of eleven years' imprisonment. This appeal followed. Additional facts are set forth below.
II. Discussion
On appeal, Gorostiza argues that the circuit court erred by: (1) failing to grant a mistrial; (2) permitting the Commonwealth to amend the indictment to conform to the evidence; (3) denying a motion for directed verdict on the tampering charge; (4) improperly instructing the jury on concurrent and consecutive sentence recommendations; (5) assessing court costs against him; and (6) improperly calculating jail-time credit. Gorostiza also argues that the prosecution made improper statements during closing argument, and claims cumulative error. We address each argument in turn.
A. Mistrial
Gorostiza first argues that the circuit court erred by failing to grant a mistrial following prejudicial statements made by a prospective juror during voir dire. We disagree.
In response to voir dire questioning, a prospective juror stated, in the presence of the jury venire, that he knew Gorostiza because, as deputy jailer, the prospective juror housed Gorostiza in the local jail prior to trial. Gorostiza moved for a mistrial, which the circuit court denied. Gorostiza declined an offer by the circuit court to give an admonition. The circuit court struck the prospective juror for cause.
A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action, or an urgent or real necessity. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005). Furthermore, a jury is presumed to follow an admonition to disregard evidence; thus, the admonition cures any error. Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010). "The circuit court has broad discretion in determining whether a jury panel should be dismissed, and its ruling should not be disturbed absent a clear abuse of discretion." Tabor v. Commonwealth, 948 S.W.2d 569, 571 (Ky. App. 1997).
Gorostiza cites Tabor, supra, in support of his argument. In Tabor, this Court held that a mistrial should have been granted when a potential juror stated that she knew the defendant after seeing him while visiting a relative in prison. The Court reasoned as follows:
Since Tabor's prior felony conviction was inadmissible as evidence or for the purposes of impeachment, it was prejudicial for the jury to learn of this conviction through voir dire. The juror's comment in reference to Tabor's general criminal disposition tainted the entire venire, and thus violated the constitutional mandates for a fair and impartial trial.Id. at 573.
The current case is distinguishable from Tabor. Here, the jury panel heard that Gorostiza was housed in the local jail, not in prison. It is not unreasonable for a juror to conclude that an accused defendant, while awaiting trial on felony charges, would be housed in a local jail. In Tabor, evidence of a prior felony would have been inadmissible because the conviction was not final whereas, in this case, Gorostiza had several prior felony convictions, all of which were final and could have been used to impeach his testimony. Moreover, Gorostiza refused the offer of the circuit court to admonish the jury, and did not at any point otherwise question the remaining jurors as to their understanding of the prospective juror's comment and their ability to decide the case fairly in light of the comment. Under these circumstances, we conclude that the circuit court did not abuse its discretion when it denied Gorostiza's request for a mistrial.
Gorostiza testified at trial in his defense.
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Before leaving this point, we note that Gorostiza also argues that the circuit court should have granted the Commonwealth's motion for a mistrial based on the conduct of several other prospective jurors who were "gossiping" about the nature of the case contrary to the circuit court's instructions. The Commonwealth has not appealed the circuit court's denial of its motion. Moreover, while Gorostiza's defense counsel initially only hesitatingly agreed with this motion, he indicated he wished to investigate the issue further. Following that investigation, the Commonwealth renewed its motion; however, Gorostiza neither joined the Commonwealth's mistrial motion nor moved for a mistrial himself.
In Price v. Commonwealth, 474 S.W.2d 348 (Ky. 1971), the former Court of Appeals stated:
[I]t is incumbent upon each party to timely make the court aware of his objection to any of the proceedings. This may be done on behalf of one of the parties or jointly on behalf of others, but the court must be informed of the position taken by a party or he cannot later complain.Id. at 350. Moreover, this Court recently explained that "a court may sua sponte grant a mistrial, or do so on the Commonwealth's motion for a mistrial, but only if there exists a manifest necessity for doing so. Otherwise, the defendant must request or consent to the mistrial." Meyer v. Commonwealth, 393 S.W.3d 46, 52 (Ky. App. 2013).
Here, we carefully reviewed the record, and cannot say Gorostiza clearly joined in the Commonwealth's mistrial motion or requested a mistrial on any ground other than that of the prospective juror's statement that Gorostiza had been housed in the local jail. Furthermore, we cannot say a manifest need to render a mistrial existed. While it appears certain jurors were discussing the case in contravention of the circuit court's admonishment to the contrary, the circuit court and parties questioned each juror who claimed to have heard the gossip, and either excused the juror or left the juror in the jury venire only after the juror claimed he or she had not been tainted and could serve impartially. On this issue, we find no error.
B. Directed Verdict
Gorostiza next claims that the circuit court erred when it denied his motion for a directed verdict on the tampering charge. The test for a directed verdict is well established:
On motion for directed verdict, the circuit court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the circuit court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "Circumstantial evidence is sufficient to support a criminal conviction as long as the evidence taken as a whole shows that it was not clearly unreasonable for the jury to find guilt." Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994). Moreover, a person is guilty of tampering with physical evidence "when, believing that an official proceeding may be instituted he 'destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with the intent to impair its verity or availability in the official proceeding.'" Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011) (quoting Kentucky Revised Statutes (KRS) 524.100(1)(a)).
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
Here, the indictment charged that Gorostiza tampered with physical evidence when he covered up a pool of blood with a floor mat. Admittedly, the evidence is not overwhelming. The sheriff deputy testified that a floor mat behind the store counter covered a pool of blood, and that there was smearing at the edges of the mat. The victim placed Gorostiza at the scene and testified that he left the store because he knew she had sounded the silent alarm. There was no testimony that anyone other than Gorostiza and the victim were present at the store when the attack occurred or thereafter until police arrived. In light of this testimony, it was not clearly unreasonable for the jury to infer that Gorostiza placed the mat over the blood in an attempt to conceal it and, in turn, find Gorostiza guilty of tampering with physical evidence under KRS 524.100(1)(a). Because there was sufficient evidence to withstand Gorostiza's directed-verdict motion, the circuit court committed no error when it denied the motion.
C. Amendment of the Indictment
As a corollary to the preceding argument, Gorostiza also argues that the circuit court erred by allowing the Commonwealth to amend the indictment to conform to the evidence. We review the circuit court's decision on the amendment of indictments for an abuse of discretion. Riley v. Commonwealth, 120 S.W.3d 622, 632 (Ky. 2003).
Kentucky Rules of Criminal Procedure (RCr) 6.16 states:
The court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted.Id.; Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997) ("[A]n indictment may be amended at any time to conform to the proof provided the substantial rights of the defendant are not prejudiced and no additional evidence is required to amend the offense."). In Anderson v. Commonwealth, 63 S.W.3d 135 (Ky. 2001), our Supreme Court held that an amended indictment did not prejudice the rights of a defendant when the amendment did not charge a new offense and the defendant presented a sort of alibi defense. Id. at 141.
As noted, the tampering charge stemmed from an allegation that Gorostiza covered up a pool of blood with a floor mat. Following Gorostiza's directed-verdict motion, discussed above, the Commonwealth moved to amend the indictment to include the concealment of the ski mask, club, and cell phone, which the circuit court granted. The amended indictment did not charge an additional or separate offense. Likewise, Gorostiza's theory of the case was that he was not the assailant and was not present at the scene at the time of the crime. Whether the alleged tampering consisted of covering blood with a mat or removing items from the scene, Gorostiza's defense remained the same - he was not the assailant and did not commit the offenses charges. Similar to the defendant in Anderson, Gorostiza presented an alibi-type defense which was not prejudiced by the indictment's amendment. 63 S.W.3d at 141 ("The Defendant maintains that these events never occurred[.] As such, any sort of alibi defense was not prejudiced by an amendment to the indictment."). Accordingly, the circuit court did not abuse its discretion by permitting the amendment of the indictment.
D. Jury Instructions
Gorostiza asserts that the circuit court erred by failing to instruct the jury that it may recommend sentences to run concurrent in part or consecutive in part. This argument was not preserved; Gorostiza requests we review it for palpable error. The standard for palpable error review is this:
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) (footnotes omitted).
"[W]here there are more than two offenses, some may be run concurrently and some consecutively, and the jury should be advised accordingly." Stoker v. Commonwealth, 828 S.W.2d 619, 627 (Ky. 1992) (emphasis added). In the present case, the jury was only required to fix sentences for two offenses: second-degree assault and tampering. PFO "proceedings involve the status of the offender and the length of the punishment, not a separate or independent criminal offense." White v. Commonwealth, 770 S.W.2d 222, 224 (Ky. 1989). Because there were only two offenses, the Stoker rule is inapplicable. Moreover, the jury sentenced Gorostiza to a total of eleven years' imprisonment for being a first-degree PFO. A sentence under the PFO statute is entered in lieu of the sentence for the underlying offenses, and is not entered consecutively or concurrently with the underlying sentence. Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985); KRS 532.080(1). We find no palpable error in the jury instructions.
E. Court Costs
Gorostiza also challenges the circuit court's imposition of court costs and fees against him because he is indigent. As an unpreserved argument, Gorostiza again seeks palpable-error review.
A defendant must pay court costs "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future." KRS 23A.205(2). "A 'poor person' means a person who is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing." KRS 453.190(2).
Gorostiza is correct that it was long the rule in Kentucky that courts could not impose court costs on an indigent defendant. See Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010) (palpable error to impose court costs on an indigent defendant). That rule, however, was recently mitigated by our Supreme Court in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). Now, courts may "impose court costs on an indigent defendant, 'unless the court finds that the defendant is a poor person as defined by KRS 453.190(2)[.]'" Smith v. Commonwealth, 361 S.W.3d 908, 921 (Ky. 2012) (citation omitted).
Gorostiza makes no argument that he is a poor person. Instead, Gorostiza only argues the circuit court erred when it required him to pay $155.00 in court costs, despite his status as an indigent person. Maynes makes clear that being needy, and therefore indigent, does not prevent the imposition of court costs. 361 S.W.3d at 929. Instead, to avoid assessment of court costs, a defendant must be deemed a poor person, and there must be a reasonable basis for believing that the defendant lacks the means to pay court costs now or in the foreseeable future. Id. Because Gorostiza presents no argument that he is indeed a poor person, on that basis alone, we decline to reverse the circuit court's assessment of court costs.
In any event, before imposing court costs, the circuit court addressed Gorostiza's ability to pay and found him able to do so. The circuit court inquired at sentencing whether Gorostiza had any money in his commissary account while imprisoned. Gorostiza replied that he did at one point, but decided to spend it on other items. The circuit court reasoned that Gorostiza could have saved that money, but chose not to. Because the circuit court conducted the required inquiry and its finding that Gorostiza is not a poor person is sound, we find no error with the circuit court's imposition of costs.
F. Jail-Time Credit
Gorostiza next argues that the circuit court incorrectly calculated the jail-time credit owed him. Gorostiza claims that he is entitled to 401 days of jail-time credit. We review this issue for an abuse of discretion. Lemon v. Corrections Cabinet, 712 S.W.2d 370, 371 (Ky. App. 1986).
"Credit for time spent in custody prior to the commencement of a sentence applies only where the custody was a result of the charge that culminated in his sentence." Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983). Of the 401 days sought, the circuit court awarded Gorostiza 193 days of jail-time credit. In so doing, the circuit court declined to award Gorostiza credit for time he spent in jail on unrelated misdemeanor drug charges. Lemons, 712 S.W.2d at 371 (the trial court need not "give credit for time served as a result of other charges"). We find no abuse of the circuit court's discretion.
G. Closing Arguments
Gorostiza argues that he was prejudiced when the Commonwealth referenced facts not in evidence during closing argument. This argument has no merit.
During closing argument, the Commonwealth stated that the victim told a defense investigator that she had witnessed Gorostiza put on a ski mask. Defense counsel objected on the basis that the investigator had not testified. The circuit court sustained the objection and admonished the jury to disregard the statement and to only consider the facts in evidence. Gorostiza requested no further relief.
When an objection is sustained and no further relief is requested, there is no error to review. Davis v. Commonwealth, 967 S.W.2d 574, 580 (Ky. 1998). Furthermore, the circuit court's admonishment cured the error. Mills, 996 S.W.2d at 485 (holding that "there is nothing for us to review" when trial court cured the Commonwealth's improper reference to defendant's prior incarceration and the defendant failed to "present any argument to rebut the presumption that the trial court's admonition cured the error."). On this issue, we find no error.
H. Cumulative Error
Finally, Gorostiza declares that the cumulative effect of the preceding errors deprived him of a fair trial and rendered his conviction unreliable. On this basis, Gorostiza seeks new a trial. We are not persuaded.
Cumulative error "is the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The doctrine is only implicated "where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id.
We have reviewed the record, and find no cumulative error sufficient to require reversal. As it relates to this case, the language of Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012) is particularly fitting: "Because the errors in this case did not raise any questions of real prejudice to the Appellant, the theory of cumulative error is not applicable." Id. at 100. Gorostiza received a fundamentally fair trial. Reversal on this ground is neither warranted nor justified.
III. Conclusion
Accordingly, the February 17, 2012 judgment of the Ballard Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky