Opinion
NO. 2011-CA-001890-MR
05-17-2013
DANNY DALE HILL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 10-CR-00013
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** **
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. CLAYTON, JUDGE: Danny Dale Hill appeals a judgment of the Russell Circuit Court that sentenced him to ten years in prison for criminal facilitation of murder and tampering with physical evidence. Danny raises three errors on appeal. He argues that a witness's testimony included inadmissible hearsay, that the directed verdict on the tampering charge should have been granted, and that reversible error occurred when the incorrect parole eligibility information was provided to the jury. We affirm the trial court's decision with regards to the hearsay and the directed verdict, but we determine that manifest error occurred when incorrect information about Danny's sentence was provided to the jury. Thus, the sentencing is reversed and remanded for another hearing on the sentencing.
FACTS
Paul Montgomery was shot and killed in his home in Russell County on December 13, 2006, during the early morning hours. Paul's stepfather, Mitchell Ballenger, discovered his body at 10:00 a.m. Upon discovery of the body, Mitchell contacted the Sheriff. Paul was pronounced dead at the scene from a gunshot wound to the chest.
Four years later, on April 27, 2010, the Russell County Grand Jury indicted Steve Williams and Danny. In the indictments, Steve was charged with murder and tampering with physical evidence, and Danny was charged with complicity to murder and tampering with physical evidence.
After Paul's murder, the Kentucky State Police took over the investigation from the local Sheriff's Office. The investigation stalled until January 2009 when Danny asked to speak with the State Police. Kentucky State Police Investigative Lieutenant Eric Wolford interviewed Danny several times. During the interviews, Danny admitted to being present when Paul was killed. According to Danny, Steve and he had been drinking that evening. They were on the way to play pool when Steve pulled into Paul's driveway. During the first interview Danny said that he did not know what happened to the gun after the men left the home. But in the second interview, Danny informed Lieutenant Wolford that following the shooting, Steve handed him the gun and told him to hide it. Danny claimed that he refused to hide it and did not know where Steve hid it. At a later interview, however, Danny said that the gun was hidden in a fence row on the way to Paul's house and that he had seen Steve hide it on the morning of the shooting. After Danny described where the gun was hidden, a shotgun was discovered at this location.
Shortly after the discovery of the shotgun, Danny and Steve were indicted. Danny was also charged with burglary in the first degree for this same incident. Danny's trial began on July 11, 2011, was held in abeyance for a couple of weeks, and began again on July 27, 2011. Numerous witnesses testified on behalf of the Commonwealth at trial. And several witnesses testified about Danny's statements and conduct before and after the shooting to establish his culpability on the charged crimes.
Among the witnesses who testified for the Commonwealth was Henrietta Ponder. She spent time with Danny and Steve in the weeks prior to the shooting. Henrietta confirmed at the trial that prior to the shooting, both Steve and Danny had wanted Paul "out of the picture." Apparently, Steve was upset with Paul for testifying against him in a previous case. Danny, according to Henrietta, was angry at Paul for having sex with his daughter and providing her with drugs. She heard them discuss "doing" Paul the weekend before the shooting.
Another witness was Brenda Worley, who lived with Steve from November 2004 until December 2007. She stated that Danny and Steve were very close friends. Further, she indicated that Danny believed that Paul had molested one of his children. Brenda testified that on the day before the murder, Danny and Steve spent most of the day together. In the evening, they left to procure a gun that belonged to Steve. Both men had been drinking most of the day and were inebriated. At that time, Brenda asked Danny not to take Steve anywhere. Brenda explained that Steve was prone to violence when he was drunk. But during their conversation, Danny said that they were going to kill Paul. Steve and Danny left the residence about midnight, and Steve took the gun plus four shotgun shells with him.
According to Brenda, Danny and Steve returned about 7:00 a.m. Danny was crying. She, however, did not see the shotgun. When Brenda asked Steve about the gun, he informed her that Danny was supposed to get rid of it. In addition, the Commonwealth played Brenda's taped interview with Lieutenant Wolford for the jury. In the taped interview, Brenda said that Danny cried and asked for forgiveness. Additionally, she said that several weeks after the shooting both men told her that if she ever opened her mouth she would be buried in a pond besides Steve's home and no one would ever know.
Another witness who testified to these matters was Barbara Aaron. Barbara said that on the day of the murder, she was at Paul's house when a car pulled into the driveway. Barbara saw Paul let Steve and Danny into the home. They asked Paul if he had any crack cocaine, but he said that he did not. She saw Danny sit on the couch and put a gun down next to him. Eventually, Paul and Steve began arguing. Then, Barbara witnessed Steve shoot Paul. Danny jumped up, grabbed Steve, and said that they had to get out of there. Barbara ran out the back door and hid.
At the close of the Commonwealth's case, Danny moved for a directed verdict. The trial court denied the motion as it related to the complicity to murder and tampering with physical evidence charges but granted it on the burglary charge. Danny renewed his motion for a directed verdict on the remaining charges at the close of his case, but the trial court again denied the motion. At the trial, besides receiving instructions on the two previously-mentioned charges, the jury was also instructed on the lesser-included offenses of criminal conspiracy to commit murder, criminal solicitation of murder, and facilitation of murder.
When the jury concluded its deliberations, it found Danny guilty of the lesser-included offense of criminal facilitation of murder and tampering with physical evidence. The jury recommended a sentence of five years for each conviction and for the sentences to run consecutively. On September 13, 2011, the trial court sentenced Danny in accordance with the jury verdict for a total sentence of ten years. Danny appeals from this judgment.
On appeal, Danny argues that Brenda's testimony, in which she claimed that Steve told her that Danny was supposed to hide the gun, should have been excluded as hearsay, that the directed verdict on the tampering charge should have been granted, and that reversible error occurred when the incorrect parole eligibility information was provided to the jury. Danny's arguments about the inadmissibility of Brenda's hearsay testimony and the incorrect nature of the parole eligibility information were not preserved, but he seeks relief under Kentucky Rules of Criminal Procedure (RCr) 10.26. Pursuant to this rule, he maintains that the errors were palpable error, and thus, may permit reversal.
The Commonwealth counters first by concurring that neither Danny's hearsay argument nor his contention that incorrect parole information was provided were preserved. Then, it challenges the notion that these actions should be reviewed because they comprise palpable error. Furthermore, the Commonwealth contends that the motion for directed verdict was appropriately denied.
ANALYSIS
Admissibility of evidence
In most cases, this court reviews the trial court's evidentiary rulings for abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Danny maintains that Brenda's testimony, in which Steve told her Danny was to hide the gun, is inadmissible hearsay. Under Kentucky Rules of Evidence (KRE) 801(c), " 'hearsay' is statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Hence, based on the definition, he claims that Brenda's testimony about Steve's statement was clearly hearsay. He bolsters this position by observing that Steve was not tried with Danny, and thus, could not testify at Danny's trial. We agree that the statement was hearsay but, as noted, this characterization was not preserved by Danny.
In the case at hand, even though our standard of review on evidentiary matters is abuse of discretion, it is not relevant here because the trial court did not rule on the admissibility of the evidence. A party must make a proper objection and request a ruling or the issue is waived. Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). Danny admits that the issue was not preserved at trial. But, notwithstanding the waiver, he contends that the hearsay evidence is palpable error, and thus, our Court may consider the issue. RCr 10.26 states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or 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.
Manifest injustice requires establishing the probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). "To discover manifest injustice, a reviewing court must plumb the depths of the proceeding ... to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable." Id. at 4.
Considering the parameter for a determination of palpable error, we reflect on the Kentucky Supreme Court's reasoning in Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), wherein it stated that "[f]or an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable." Moreover, "[a] palpable error must involve prejudice more egregious than that occurring in reversible error." Id. In essence, for us to ascertain that this statement is palpable error, we must be convinced that it is so grave that without its admittance, "there is a 'substantial possibility' that the result in the case would have been different without the error." Id.
We believe that Brenda's statements recounting Steve's assertions about Danny hiding the gun are not significant enough that, without their inclusion, Danny would not have been convicted. Danny has not established that but for these statements, he would not have been convicted of tampering with physical evidence. Danny's suggestion that it is the only evidence supporting his conviction for tampering is unpersuasive. There was other testimony about Danny's association with the gun, including his own participation in finding its location.
Undoubtedly, contradictory evidence was provided to the jury about whether Danny hid the gun. The Commonwealth provided other evidence besides Brenda's testimony that Danny did hide the gun. In fact, Danny's own statements during the state police interviews were inconsistent and evolved over time. It is accurate that Danny always contended that he did not hide the gun. Yet, given all the evidence presented to the jury, it is not unreasonable for them to have decided that Danny hid the gun. A jury is the trier of fact. It may believe or not believe the testimony of witnesses. Moreover, the jury is not required to accept or reject each witness's testimony in its entirety, but may choose to believe or disbelieve portions of each. Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996)
Therefore, we conclude that no palpable error occurred when the jury heard Brenda's hearsay statement about Danny hiding the gun, and hence, any error that occurred was harmless.
Propriety of Directed Verdict Denial
Next, Danny alleges that the trial court erred when it denied both his motions for directed verdicts on the tampering with physical evidence charges. He made the motions at the close of the Commonwealth's case and again at the close of his case. Danny declares that insufficient evidence was presented to prove the charges of tampering with physical evidence, and therefore, the motions should have been granted. According to Danny, the only evidence provided to support the tampering charge was Brenda's hearsay statement and his statement made during his interview with the State Police. At trial, the Commonwealth responded that not only were these statements on the record but that they also created a question for the jury. The trial judge agreed and denied the motions for directed verdict.
On a motion for a directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). The standard for appellate review of the denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, then he is entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983). Nonetheless, "[t]he Commonwealth bears a burden of proof in establishing each element of the charged crime, else a motion for a directed verdict by the defendant must be properly entertained." Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky. 1986).
For a person to be convicted of tampering with physical evidence, it must be proven, pursuant to Kentucky Revised Statutes (KRS) 524.100(1), that "believing that an official proceeding is pending or may be instituted, he: (a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding."
Danny argues that the Commonwealth failed to present sufficient evidence to demonstrate that he tampered with physical evidence. Danny does not dispute that the gun was concealed, but he challenges the sufficiency of the evidence to confirm that he hid it, that is, tampered with it. Initially, he bases this contention on the hearsay nature of Brenda's testimony regarding his role in hiding the gun. Yet, notwithstanding the hearsay nature of Brenda's testimony, we have concluded that no palpable error occurred when the jury heard the testimony. Thus, as determined by the trial judge, her statement, which was not objected to by Danny, was on the record for the jury to hear. Further, Danny maintains that no competent evidence was presented that contradicted his statement to the state police that he refused Steve's request to hide the gun
Thus, our task is to assess whether the evidence heard by the jury was sufficient to convict Danny of the charge of tampering with physical evidence. Danny acknowledges that the jury heard both his statements and Brenda's testimony. And he suggests that this is the only evidence provided the jury and that it is insufficient to establish that he tampered with the physical evidence. Therefore, Danny argues that because insufficient evidence was provided to the jury for his conviction, his due process rights were violated.
But, our review of the record differs from Danny's summary of the evidence. Besides the statements of Brenda and Danny about the gun being hidden, the jury also heard, among other things, that Danny was with Steve all day, that they were good friends, that they were intoxicated at the time of the incident, and that Danny accompanied Steve and was present at the murder. Additionally, Danny told the state police exactly where the gun was located and its location was near his home. Added to these facts, the jury also was aware that Danny changed his statements several times over the history of the case. Drawing all fair and reasonable inferences from the evidence in favor of the Commonwealth, we believe that a reasonable juror could infer that Danny hid the gun. Therefore, we conclude the trial court did not err in denying Danny's motion for a directed verdict on the tampering with physical evidence charge.
Impact of incorrect parole eligibility information
During the penalty phase, the probation and parole officer provided incorrect information about Danny's parole eligibility. The jury was informed that both facilitation to murder and tampering with physical evidence are Class D felonies with a penalty range of one to five years in prison. And for each offense a person would be eligible to meet with the parole board after serving fifteen percent of his sentence. Hence, according to the parole officer, a person receiving the minimum sentence of one year for a Class D felony would be eligible to seek parole after serving two months, and a person receiving the maximum sentence of ten years (if the five years were ordered to run consecutively) would be eligible to seek parole after 18 months.
The parole officer, however, failed to consider the impact of KRS 439.340(3)(a), which states:
A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years who is confined to a state penal institution or county jail shall have his or her case reviewed by the Parole Board after serving fifteen percent (15%) or two (2) months of the original sentence, whichever is longer.Danny's aggregate sentence was not five years but ten years. Consequently, he is not able to seek parole until he serves twenty percent of the sentence.
As with Danny's first claim of error, this claim is also unpreserved. Thus, as discussed earlier, any review must be for manifest injustice under RCr 10.26. Consequently, Danny must establish that the parole officer's incorrect information about his sentence to the jury resulted in manifest injustice. Manifest injustice requires a showing that it is probable that a different result would have occurred or that Danny's due process rights were violated. Martin, 207 S.W.3d at 3.
The difference between serving fifteen percent of the sentence rather than twenty percent is that Danny, instead of serving eighteen months before seeking parole, had to serve twenty-four months to be eligible for parole. Thus, Danny's parole eligibility is six-months-different than the jury was informed. For someone incarcerated, this time period is considerable.
Danny cites Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005), to support his assertion that manifest injustice occurred. Therein, the Court stated:
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).Id. at 3. Subsequently, the appellate court in Robinson reversed the sentence therein and ordered a new sentencing phase because the false statements offered during the sentencing phase were found to be material, that is, a reasonable likelihood that the information affected the jury's judgment. It did so despite the lack of preservation. Thus, the decision in Robinson demonstrates that neither failure of preservation nor good-faith error will excuse materially false information where "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id., quoting Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. We believe that the false information in Danny's situation also had a reasonable likelihood of influencing the jury's decision regarding his sentence.
In sum, Danny's due process rights were violated by the presentation of incorrect information about his sentence. Similar to Robinson, we are unable to ascertain with any certainty whether the false information influenced the jury. Robinson, 181 S.W.3d at 38. But there is a reasonable likelihood that the jury was influenced by the incorrect testimony. Therefore, manifest injustice occurred, and we reverse the sentencing order and remand this matter back to the trial court for a new sentencing phase of the trial.
CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the judgment of the Russell Circuit Court. Further, we remand the case for a new sentencing hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky