Opinion
NO. 2011-CA-000315-MR
05-10-2013
DANTE C. STONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NOS. 10-CR-000657 AND 10-CR-003463
OPINION
AFFIRMING IN PART, REVERSING IN PART,
VACATING IN PART, AND REMANDING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. CAPERTON, JUDGE: The Appellant, Dante Corvette Stone, appeals the January 14, 2011, judgment of conviction and sentence entered by the Jefferson Circuit Court, convicting him of retaliation against a participant in the legal process, two counts of assault in the fourth degree, terroristic threatening in the third degree, and persistent felony offender in the second degree, for which he was sentenced to a total of five years' imprisonment. Following a thorough review of the record, the arguments of the parties, and the applicable law, we affirm in part, reverse in part, vacate in part, and remand.
On the evening of December 30, 2009, a domestic disturbance was occurring at 3211 Utah Avenue, Apartment 3, in Louisville. Danita Wright-Gomez lived at that address with her two sons, F.P. (age thirteen), and W.G. (age eight). Stone, who had been her boyfriend for a couple of months, also resided at that address. At approximately 8:30 p.m., F.P. called the police via a 911 emergency call. F.P. informed the operator that his mother's boyfriend was beating her up. Wright-Gomez then told F.P. to hang up the phone and he did. Thereafter, the 911 operator called the residence and Stone answered. The 911 operator asked to speak with the person who had called, and Stone gave the phone to F.P. The 911 operator asked F.P. if his mother was the one who told him to hang up the phone and F.P. answered affirmatively. The operator then told F.P. to advise his mother that the police would be at the residence shortly and that the dispatch call could not be canceled.
Officer Tillman of the Louisville Metro Police Department arrived at the residence shortly thereafter. Officer Tillman testified that Stone matched the description of the suspect given by F.P. over the phone, that he was sweating, appeared to have just physically exerted himself, and had a scratch on his shoulder. Tillman stated that he was also able to observe Wright-Gomez and her two children, and noted that both children were very visibly upset, and were crying and shaking. Officer Tillman stated that Stone took an aggressive stance when he attempted to make inquiries with Wright-Gomez and her sons. Officer Tillman testified that despite the denials of Wright-Gomez at the time, he noted that she also appeared to have been crying and had a bruise on her shoulder. Tillman further stated that while waiting for backup to arrive, he observed Stone threaten to take away F.P.'s PlayStation and send him to the Home of the Innocents. Officer Tillman took photographs to document the injuries to Wright-Gomez and F.P., and noted that F.P. had redness on his chest and fingernail markings consistent with being grabbed across the face. After speaking with F.P. and W.G. and based upon his observations, Tillman arrested Stone.
Tillman testified that while being transported to jail, Stone made a statement to him, which he described as follows:
He stated to me that he was a real criminal. Uh, he stated that he would not have hit the mother, but that he would shoot or kill someone, and that a charge of wanton endangerment was more his style. He, uh, continued on to say that if something, if it came out later that someone had killed the entire family, that would most likely be him.VR No. 2, 11/17/2010, 11:38:45.
While incarcerated, Stone made approximately 30 phone calls to Wright-Gomez. During those calls, Stone made threats against F.P. On one occasion Stone told Wright-Gomez that he would slap F.P. 55 times if he got a hold of him, and on another occasion that he would have his little brother come and beat F.P. up.
Subsequently, on January 11, 2010, at the preliminary hearing in district court, Wright-Gomez testified that nothing had happened and asserted that her sons had made up the allegations because they did not like Stone. Wright-Gomez was subsequently charged with perjury, a charge which was dismissed in exchange for her testimony in circuit court.
Wright-Gomez testified that the 911 call had been placed due to Stone "putting his hands on me and my kids." When asked for a more specific explanation, she testified that it began with Stone sitting on top of her and placing his hand over her mouth, such that she was unable to breathe. Wright-Gomez did state that this incident included Stone putting his hands on her neck and placing her in a chokehold, causing pain which made her unable to breathe and leaving marks on her neck. Wright-Gomez testified that when W.G. came into the room and asked Stone to release his mother, Stone kicked W.G. instead. This caused W.G. to cry and prompted F.P. to intervene and tell Stone not to put his hands on his brother. Stone then grabbed F.P. by the neck, threw him to the floor, and began "stomping" him. Wright-Gomez testified that F.P. was injured and displayed redness on his chest and mouth. According to Wright-Gomez, the entire incident was initiated by an argument between Wright-Gomez and Stone over a text message on Stone's cell phone. Wright-Gomez testified that she may have hit Stone after discovering the text message, and that she also threw his phone against the wall.
During the course of her testimony, Wright-Gomez admitted that she was not cooperative with police on the night of the call and that she did not want her son to make the call that evening. Wright-Gomez acknowledged telling F.P. to hang up the phone and stated that she did so because she feared for their lives.
Stone also testified in his own defense and denied assaulting anyone. He testified that Wright-Gomez actually assaulted him because she was upset about another female sending him a text message and that he restrained her. Stone also presented several witnesses who testified that they had known Stone for many years and that they trusted him with their children. Those witnesses indicated that they had never seen Stone do anything that would lead them to believe that Stone could be violent towards women or children.
Leading up to trial, Stone was represented by Hon. Angela Rea of the Louisville Metro Public Defender's Office. On July 15, 2010, Rea notified the trial court of Stone's desire to proceed pro se. On August 10, 2010, a hearing was held on Stone's motion for self-representation. In her presentation, Rea handed the pertinent Faretta case law to the trial court and the court entered into a colloquy with Stone. Based upon the answers he provided, Stone was deemed qualified to represent himself and Rea was ordered to remain as whisper counsel.
A jury trial was held from November 16 to 19, 2010. Stone was convicted of retaliating against a participant in the legal process, two counts of assault in the fourth degree, and terroristic threatening in the third degree, and was also found to be a persistent felony offender. Stone received a sentence of five years' imprisonment, and this appeal followed.
As his first basis of appeal, Stone argues that the record does not establish that he knowingly, voluntarily, and intelligently waived his right to counsel. While acknowledging that this issue was unpreserved below, Stone requests palpable error review. Stone alleges that he was not proceeding with "eyes open," as required by Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), and that the court after its questioning of Stone on this issue should have refused his request to proceed pro se. The Commonwealth disagrees, and argues that the trial court properly ruled that Stone could represent himself. The Commonwealth asserts that Stone waived his right to counsel with a full understanding of the implications thereof, and repeatedly indicated an understanding of the actions he was taking and the risks involved in doing so. Upon review of the record and applicable law, we agree with the trial court.
As both parties have correctly observed, when a defendant exercises his right to waive the assistance of counsel, the advisory obligations of Faretta are triggered and a trial court must ensure that the defendant makes his waiver voluntarily, knowingly, and intelligently. See Depp v. Commonwealth, 278 S.W.3d 615, 617 (Ky. 2009)(citing Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004), abrogated on other grounds by Grady v. Commonwealth, 325 S.W.3d 333 (Ky. 2010)).
As our United States Supreme Court held in Faretta, implicit in the Sixth Amendment right to defend oneself is the right to do so without counsel. Faretta requires a hearing in which the defendant testifies and in which a finding is made concerning whether the waiver is knowing, voluntary, and intelligent. Hill at 226. The defendant must also be warned of the hazards arising from and the benefits relinquished by waiving counsel. Id. However, as our courts have also held, the actions required of a trial court addressing a defendant's waiver of counsel are not rigidly defined. See Grady v. Commonwealth, 325 S.W.3d 333, 342 (Ky. 2010).
Indeed, as a result of the United States Supreme Court's holding in Iowa v. Tovar, 541 U.S. 77, 90, 124 S.Ct. 1379, 1388, 158 L.Ed.2d 209 (2004), Kentucky abandoned the bright-line approach previously embraced in Hill, supra, based upon a finding that its rigid requirements were contrary to judicial economy and common sense. Instead, our courts adopted a pragmatic approach whereby we simply question on appeal, in light of the entire record and on a case-by-case basis, whether the defendant's waiver of counsel was done knowingly, intelligently, and voluntarily. See Commonwealth v. Terry, 295 S.W.3d 819 (Ky. 2009).
Sub judice, following Stone's request to represent himself, a hearing was held. During the course of that hearing, the trial court entered into a detailed colloquy with Stone. During the course thereof, the court confirmed that Stone wished to proceed without counsel and that his decision to do so was knowing, intelligent, and voluntary. It inquired into any training or familiarity that Stone might have with the law, and listened to Stone's responses concerning the work he had done on his own case. Moreover, the trial court warned Stone of the differences between trial and appellate level practice, and also questioned him as to his knowledge of court rules and procedures. Finally, the court confirmed that Stone was aware of the charges against him, and the penalties he faced if convicted, in addition to warning Stone about the risks of representing oneself, and suggesting that Stone reconsider. Stone chose not to reconsider, and reaffirmed his desire to proceed pro se.
Based upon this detailed and thorough exchange, we are in agreement with the Commonwealth that Stone's allegation of error in this regard is without merit and that his hearing was conducted in accordance with the standards set forth in Faretta. The colloquy between Stone and the court clearly met the standard for a knowing, voluntary, and intelligent waiver of counsel. Stone indicated an awareness of the charges against him, the potential penalties, and the manner in which the trial would be conducted. Stone chose, with eyes open, to proceed pro se. Accordingly, we find no error, and affirm.
As his second basis for appeal, Stone argues that the testimony of district court prosecutor Alison Cox that she felt the allegations against him were true and the testimony of Officer Tillman that he believed an assault had occurred, were improper, invaded the province of the jury and violated the law. Stone acknowledges that this alleged error was also unpreserved below, but again requests palpable error review. Below, the Commonwealth called Cox as a witness during trial. Prior to the trial sub judice and during the course of a probable cause hearing in district court, the victim, Wright-Gomez, testified on behalf of Stone and lied about having post-arrest contact with him. Both phone records and recordings evidenced that contact had occurred, and Wright-Gomez was charged with perjury and prosecuted by Cox. The perjury charge was eventually dismissed, and when asked on direct examination why the perjury charge against Wright-Gomez was dismissed, Cox told jurors that, "After speaking to family members of hers and speaking to her, and the fact that I knew, or I felt that the allegations against the defendant were true, but that she had not been truthful in court, I decided at that time to dismiss it." An agreement was then made with Wright-Gomez to testify truthfully in the matter sub judice.
See VR No. 2: 11/18; 10:19:57-10:20:16.
Stone now argues that it was improper for Cox to testify that she felt the charges against Stone were true, and that it was improper for Officer Tillman to testify as to his belief that an assault had occurred. Stone argues that witnesses are generally not allowed to testify as to conclusions of law, and that a witness's opinion that a defendant is guilty is not admissible at trial and impermissibly intrudes upon the province of the jury to determine guilt.
In response, the Commonwealth argues that no manifest injustice occurred during the testimony of Cox. With respect to Cox's testimony, the Commonwealth argues that any error with respect to her statement would not rise to the level of manifest injustice. It asserts that her testimony about the district court proceeding was vague, as she mentioned only "allegations" and did not refer to any specific crime.
In its brief to this Court, Commonwealth acknowledges that Cox's statement was "not ideal," but asserts that the jury was not prejudiced by learning that Cox believed in the prosecution's case based on her involvement with the case in a prosecutorial role. The Commonwealth also argues that Stone himself essentially brought this testimony out on cross-examination. The Commonwealth thus asserts that no manifest injustice occurred and that any error was harmless. It asserts that sufficient evidence existed to support the charges against Stone regardless of the comments made by Cox.
Stone's counsel questioned Cox as to whether her opinion that Stone was lying at the time of the probable cause hearing was only an opinion. Cox responded by noting that Stone did not testify and, thus, she had no basis to judge. Stone then asked whether, at that point in time, Cox knew that the allegations against him were true or false. Cox responded by stating that her analysis of the evidence supported the child's statement of what happened at the scene more than the statement given by Wright-Gomez.
Upon review of the record and applicable law, we find that the admission of Cox's testimony was in error. Our law is clear that witnesses generally cannot testify to conclusions of law. See Tamme v. Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998). Moreover, our courts have specifically held that a witness's opinion that a defendant is guilty is not admissible at trial. See Bussey v. Commonwealth, 797 S.W.2d 483, 485-486 (Ky. 1990), and Nugent v. Commonwealth, 639 S.W.2d 761, 764 (Ky. 1982).
Wherein, Appellant's counsel attempted to solicit opinion from detective as to whether a certain witness for the prosecution had committed specific crimes, and court found that, generally, witnesses cannot testify as to conclusions of law.
In Nugent, our Supreme Court addressed the admission of testimony from a witness concerning a defendant's guilt or innocence by stating, "The issue of guilt or innocence is one for the jury to determine, and an opinion of a witness which intrudes on this function is not admissible, even through a route which is, at best, "back door" in nature." Id. at 764. Sub judice, unlike in Nugent wherein the testimony at issue was elicited on redirect examination, Cox's statements were elicited on direct examination and were not even "back door" in nature. Accordingly, we believe that the admission of these statements was error.
In so finding, however, we recognize that to reverse in the case of an unpreserved, palpable error, we must find that a manifest injustice has resulted from that error. Kentucky Rules of Criminal Procedure (RCr) 10.26. Such requires a showing of the probability of a different result, or an 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). Sub judice, we believe that the admission of the testimony at issue rose to the level of error necessary for reversal only with respect to the charges of assault in the fourth degree.
With respect to these assault charges, we find conflicting evidence and contrary testimony from the parties. Certainly, it is the prerogative and privilege of the jury to weigh such as evidence, including the credibility of witnesses, and to come to a conclusion on the basis of the evidence. White v. Commonwealth, 312 Ky. 543, 545, 228 S.W.2d 426 (Ky. App. 1950). However, in this instance, given the lack of additional independent evidence beyond the conflicting testimony given by Stone and the victim, we cannot say with certainty that Cox's statement as to the truth of the allegations did not factor heavily into the jury's decision and might have resulted in an outcome different than that which the jury may have reached absent such testimony.
Certainly, there is no way to determine the exact weight given by the jury to the statements of an individual in a prosecutorial role who had been involved with the case and had interacted with various involved parties. However, as our United States Supreme Court stated in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), a prosecutor's "improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Finding the testimony at issue below to be of such a nature as to carry significant weight with the jury, and being unable to determine how the jury would have found absent this testimony and in light of substantial independent evidence beyond the conflicting testimony, we believe reversal is appropriate with respect to the two assault charges. Accordingly, we reverse Stone's conviction on the assault fourth charges and remand for a new trial on those charges alone.
Having so found, we now turn Stone's arguments concerning the testimony of Cox and Tillman with respect to the remaining two charges, retaliation against a participant in the legal process and terroristic threatening in the third degree, both of which require an analysis separate from that concerning the charge for assault in the fourth degree.
Regarding both the terroristic threatening and retaliation against a participant in the legal process charges, this Court is of the opinion that sufficient independent evidence existed in the form of Stone's own statements to police officers and numerous phone recordings containing Stone's voice making threats to proceed with those charges. Thus, though Cox's commentary with respect to her belief in the truth of the allegations against Stone was in error, such error did not rise to the level necessary to support a finding of manifest injustice because we believe that Stone would very likely have been convicted of terroristic threatening and retaliation against a participant in a legal process on the basis of the independent evidence against him.
To clarify, the evidence on the assault charges consisted only of the officer's evaluation of marks on the victims and the testimony of Stone and one of the victims. The prosecutor's statement could easily have tipped the scales of justice in favor of the prosecution. To the contrary, the evidence presented with respect to the retaliation against a participant in the legal process and terroristic threatening charges consisted of evidence independent from either the testimony of the victim or perpetrator bolstered by the prosecutor, i.e., the statements Stone made to the officer and the phone recordings. Accordingly, we affirm the court's conviction on the charges of retaliation against a witness in the legal process and terroristic threatening.
Having addressed the effect of Cox's testimony on Stone's convictions, we now analyze the admissibility of Officer Tillman's testimony. Stone notes that at the start of his testimony the Commonwealth asked Officer Tillman to tell the jury what he found upon his arrival at the residence in response to a dispatch call. Officer Tillman testified that Stone answered the door and appeared to have physically exerted himself, and that he looked past him, and even from a distance he could tell that the children were visibly upset, crying, and shaking. Officer Tillman went on to tell the jurors, "And at that point I determined that, uh, I had reason to believe that an assault had either just occurred or was occurring as I knocked on the door, believing I had exigent circumstances to enter that apartment and conduct an investigation."
VR No. 1: 11/17: 10; 11:12:45-11:13:11.
The Commonwealth argues that Officer Tilman's statement as to "reason to believe" that an assault had occurred was not a conclusion of law. Instead, the Commonwealth argues that the statement was elicited during a recount of Officer Tillman's actions, and as an explanation of his conduct at the scene and particularly in light of the fact that Stone and Wright-Gomez were trying to convince him to leave because nothing criminal had occurred. Thus, the Commonwealth argues that Officer Tillman's specific notation that he had "reason to believe" an assault had occurred was an explanation of his belief in the need for a continuing investigation into a possible arrest, and did not equate to Officer Tillman testifying that Stone was guilty of assault.
Alternatively, the Commonwealth argues that if this alleged error is examined under the standard of manifest injustice required by RCr 10.26, it must also fail. The Commonwealth notes that Stone himself repeatedly asked Officer Tillman to admit that he believed the assault allegations against him, including questioning during cross-examination in which Stone asked Officer Tillman specifically whether he believed Stone to be guilty of assault. Moreover, the Commonwealth asserts that even if error did occur, it was harmless, as the additional evidence submitted clearly supported Stone's conviction for assault.
We are in agreement with the Commonwealth that Officer Tillman's statements were not conclusions of law, and that his statement of "reason to believe" an assault had occurred was given as an explanation for his belief in the need to continue the investigation to determine whether he needed to make an arrest. We are not persuaded by Stone's arguments that Officer Tillman's statements equate to testimony in his belief of Stone's guilt. Certainly, in assessing whether further investigation needed to be conducted at the scene, Officer Tillman was required to make certain conclusions, prior to entering the residence, and preceding an arrest for domestic violence. The statements made by Officer Tillman as to the conclusions he made were merely explanations for continuing the investigation and entering the home on the date in question, and not conclusions of evidence. Accordingly, we believe no error was committed in admitting the statements at issue.
We also now turn briefly toward Stone's remaining arguments on appeal. As his third basis for appeal, Stone argues that he was entitled to a directed verdict on the fourth-degree assault charge against F.P., as well as with respect to the retaliating against a participant in the legal process charge and the terroristic threatening charge. We address these arguments respectively.
Though we are remanding this matter for a retrial of the assault charges for the reasons previously set forth herein, we briefly address Stone's remaining arguments, should they arise again on remand.
Prior to doing so however, we note that the standard of appellate review for determining whether a defendant was entitled to directed verdict due to insufficiency of the evidence is whether, under the evidence as a whole, it would be clearly unreasonable for a jury to find the accused guilty beyond a reasonable doubt. If so, the defendant should have been granted a directed verdict of acquittal. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). We review this matter with this standard in mind.
Concerning the charge for fourth-degree assault, Stone notes that though he was convicted of fourth-degree assault against F.P., F.P. did not testify. Stone states that instead the district court prosecutor stated that she believed the charges against Stone were true. Stone again complains of Officer Tillman's testimony and characterizes it as improper factual conclusions and adds that the inclusion by Officer Tillman of his observations concerning the redness and swelling on F.P's mouth and chest was also improper. Stone notes that Wright-Gomez also testified that she observed Stone grab F.P. by the neck, throw him on the floor, and begin stomping on his chest, and that she answered affirmatively when the Commonwealth asked whether he was injured. Stone asserts that neither of these individuals could testify as to F.P.'s subjective experience, and that without F.P.'s testimony, the Commonwealth did not prove beyond a reasonable doubt that he suffered a "physical injury," leaving the jury to speculate in this regard.
We have already addressed the comments made by the prosecutor, supra, and agree with Stone that the comments constituted error as to the assault charge only.
In response, the Commonwealth argues first that this error is unpreserved. While noting that Stone did make a directed verdict motion for this charge, the reason articulated for his motion at trial was not the same as the basis now articulated in his brief. Alternatively, the Commonwealth argues that the actual testimony of F.P. was not necessary, and that physical pain can be inferred by the act committed against the victim, as well as by outward signs of injury. The Commonwealth argues that from the evidence submitted, the jury could easily infer substantial physical injury to F.P. as a result of the actions taken by Stone. We agree.
We note that Stone acknowledges that this error was unpreserved in his reply brief, and requests palpable error review. Our Supreme Court has recently held that when the Commonwealth challenges preservation concerning a directed verdict request, a request for palpable error in a reply brief is timely. See Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009). We review the issue accordingly.
First, we address Stone's complaint that Officer Tillman's testimony amounted to improper factual conclusions and that his observations of F.P.'s condition were improperly admitted. We have already addressed the alleged factual conclusions, supra, and concluded they were properly admitted. Officer Tillman's observations of F.P. were mere factual evidence of the kind expected of witnesses and we see no error in admission of same. We now address the Commonwealth's response concerning the inference of physical pain from sign of outward injury.
In addressing this issue, we note that Kentucky Revised Statutes (KRS) 508.030 states, in pertinent part, that fourth-degree assault occurs when a person, "intentionally ... causes physical injury to another person." "Physical injury" is defined as "substantial physical pain or impairment of physical condition." Our courts have held that physical pain can be inferred by the act committed against a victim, as well as outward signs of injury. See Key v. Commonwealth, 840 S.W.2d 827 (Ky. App. 1992). In light of the facts sub judice, it would certainly be reasonable for a jury to infer substantial physical pain or injury from testimony that Stone hit F.P. with a force sufficient to throw him to the ground and then began stomping on his chest. The observations made by Officer Tillman concerning the redness and swelling on F.P.'s face and chest further support that finding. It was not necessary for F.P. to testify to establish this inference, particularly when the evidence is viewed in a light most favorable to the prosecution. Accordingly, there was no error in denying Stone's request for directed verdict.
See also Covington v. Commonwealth, 849 S.W.2d 560 (Ky. App. 1992), in which this Court held that bruising satisfied the requirement of physical pain necessary to sustain a fourth-degree assault conviction.
We now turn to Stone's argument that he should have been granted a directed verdict on the charge of retaliation against a participant in the legal process. Stone argues that the statements at issue were made only to Wright-Gomez, and that he never directly threatened to kill or injure F.P., and merely indicated to Wright-Gomez over the phone that he would like to do so.
These included statements made over the phone that he would "slap the s—t out of F.P.," and that he would have his little brother come and "detonate" F.P.
In response, the Commonwealth again argues that this issue is unpreserved, as the reason articulated for his motion at trial was not the same as the basis now articulated in his brief. Alternatively, the Commonwealth argues that Stone's assertions concerning the lack of a "direct threat" against F.P. are baseless and unsupported by precedent. We agree with the Commonwealth that Stone's claims in this regard are not supported by the law of this Commonwealth. In addressing this issue, we note that a person is guilty of retaliating against a participant in the legal process when he "engages or threatens to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process." KRS 524.055(1). "Threat" is defined as, "any direct threat to kill or injure a person protected by this chapter, or an immediate family member of such a person." KRS 524.010(8).
Sub judice, Stone essentially concedes making threats of bodily harm toward F.P., but asserts that because they were made to F.P.'s mother, they were insufficient to violate the statute. We believe that this argument ignores the applicable law and the precedent of this Court. Indeed, in Rankin v. Commonwealth, 265 S.W.3d 227 (Ky. App. 2007), this Court held that the defendant's statement to the grandmother of a potential witness, in which defendant threatened violence against the witness, was sufficient to meet the requirements of the statute. Such was the case with the statements made by Stone to Wright-Gomez concerning F.P. Accordingly, we believe the court below correctly denied Stone's request for a directed verdict. .
Indeed, because F.P. was a minor, his mother was the person responsible for his care, and would likely have been the individual responsible for producing F.P. to testify at the hearing had he been required to testify. Thus, not only does the threat made to the mother concerning F.P. qualify as intimidation of a witness pursuant to the holding of Rankin, supra, it also qualifies as a threat against a participant in the legal process insofar as Wright-Gomez was the individual responsible for the production of the witness. On these alternative grounds, we also believe affirmation is warranted.
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As noted, Stone also argues that a directed verdict should have been granted in his favor on the charge of terroristic threatening. Stone asserts that he never actually said he was going to kill anybody. Stone does acknowledge that after his arrest, he allegedly stated, "If it came out later that someone had killed the entire family, that it would most likely be by [me]." However, he asserts that this was not an actual threat to commit a crime likely to result in death or serious physical injury, and was only an expression of transitory anger.
In response, the Commonwealth argues that Stone's statements could be viewed in no other light other than as a threat of violence meant to terrorize his victims. The Commonwealth asserts that in the alternative, any arguments about the lack of seriousness of the statements constitute a defense and do not explain away the reasonable understanding ultimately adopted by the jury. Thus, the Commonwealth argues that Stone's claim in this regard must fail. We are compelled to agree.
We note that KRS 508.080 provides that a person is guilty of terroristic threatening when he "threatens to commit any crime likely to result in death or serious physical injury to another person ...." KRS 508.080. As this Court has previously held, the offense of making a terroristic threat may be complete without evidence that the accused intended to carry out the threat and without evidence that the victim was placed in reasonable apprehension of immediate injury. Hughes v. Kentucky Horse Racing Authority, 179 S.W.3d 865, 872 (Ky. App. 2004). Further, in Thomas v. Commonwealth, 574 S.W.2d 903, 909-10 (Ky. App. 1978)(citing to State v. Lizotte, 256 A.2d 439 (Me. 1969), this Court stated that, "To bring a case within the statute, no evil purpose or malice is requisite other than an intention to give utterance to words which to the accused's knowledge were in the form of, and would naturally be understood by the hearers, as being a threat."
Moreover, the commentary to KRS 508.080 clearly provides that:
The first part of this section provides penal sanctions for threats of a more serious nature than those covered by the offense of menacing. Two differences between the offenses should be specifically noted: menacing requires a threat of only "physical injury" while terroristic threatening requires a threat of death or "serious physical injury"; and menacing requires that the victim be placed in reasonable apprehension of immediate injury while terroristic threatening has no requirement of apprehension by the victim. For the latter offense, the victim need not even know of the threat. Examples of the types of conduct contemplated for this section are threats to commit murder, aggravated assault and arson.See KRS 508.080.
Sub judice, Stone made statements indicating that he was a "real criminal," and that were the family to be discovered dead, it would likely be he who had committed the crime. Of note, Stone's threat in this instance was not contingent or conditioned upon any action to be taken by another. His threat was not to hurt the family "if" they angered him again, or "if" he were convicted. To the contrary, they were clear and unequivocal statements made by Stone indicating that his family might be found dead, and inferring that he might be the one that killed the family.
Such a scenario clearly differs from the situation alluded to in Thomas where "KRS 508.080(1)(a) does not apply in the case of idle talk or jesting. The defendant's intent to commit the crime of "terroristic threatening" can be plainly inferred from the defendant's own words and the circumstances surrounding them." Thomas at 910. Additionally, "A statement of intention to inflict harm on another, conditioned upon a future happening would tend to generate fear in direct proportion to the likelihood that the condition would be fulfilled." Thomas at 910.
Sub judice, Stone was accused of assault and evidence was presented consistent with that charge. Thus the threat of future violence was very real based upon his statement concerning the potential death of his family and the current arrest and potential prosecution based thereon. We see no other manner in which to view these statements based on the circumstances than as threats of violence against his intended victims. Accordingly, and particularly when viewing this evidence in the light most favorable to the Commonwealth, Stone's claim of error must fail. We affirm the court's denial of Stone's request for a directed verdict.
As his final basis for appeal, Stone argues that the trial court improperly levied a $500 fine against him for terroristic threatening in the third degree. The Commonwealth concedes that the imposition of this fine was error, as Stone had previously been declared indigent and was being represented by the Louisville Metro Public Defender's Office prior to the time that his Faretta motion was granted.
In addressing this issue, we note that it has long been the rule in this Commonwealth that court costs may not be imposed on an indigent defendant. See Edmonson v. Commonwealth, 725 S.W.2d 595, 596 (Ky. 1987); Ladriere v. Commonwealth, 329 S.W.3d 278, 283 (Ky. 2010); and Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010). However, our Supreme Court recently reexamined this long-standing rule in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012).
In Maynes, our Supreme Court mitigated the bright-line rule concerning the payment of court costs by indigent persons, reasoning that " 'need' is a matter of degree and that defendants eligible for DPA representation may nevertheless be required to contribute to their defense or to pay court costs if the court determines that they are able to do so." Id. at 928. The Court ultimately distinguished between two categories of persons: (1) a "needy" (i.e., indigent) person under KRS 31.110 who is unable to pay for legal services; and (2) a "poor" person under KRS 23A.250 who is unable to pay court costs. Id. at 929. The Court held that "a person may qualify as 'needy' under KRS 31.110 because he cannot afford the services of an attorney yet not be 'poor' under KRS 23A.205[2]." Id.
The Court went on to explain that a person is only "poor," if he lacks the ability "to pay court costs without 'depriving himself or his dependents of the necessities of life, including food, shelter or clothing.'" Id. (quoting KRS 453.190(2)), and stated further, that "[w]ithout some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper." Id. Thus, if a defendant is "needy" but not "poor," the circuit court may impose court costs on that defendant. Id. On the other hand, if an indigent defendant is also found to be "poor," the circuit court is prohibited from imposing court costs. Maynes, 361 S.W.3d at 929.
Sub judice, prior to imposing the fine on Stone, the circuit court issued no finding as to whether he was a "poor person" as defined by KRS 453.190(2), and did not inquire into his ability to pay court costs or for counsel in the foreseeable future. KRS 23A.205(2). That failure to issue a finding was in error. Because the circuit court had previously found Stone to be indigent, and also failed to ascertain whether Stone was a "poor person" as defined by KRS 453.190(2) prior to imposing court costs, we reverse and remand this matter for additional proceedings.
Wherefore, for the foregoing reasons, we hereby reverse the January 14, 2011, judgment of conviction and sentence entered by the Jefferson Circuit Court insofar as the two convictions for fourth-degree assault are concerned, affirm the convictions for terroristic threatening and retaliation against a participant in the legal process, and vacate the imposition of the $500 fine against Stone. Accordingly, we remand this matter for all necessary proceedings consistent with this opinion.
LAMBERT, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION.
MOORE, JUDGE: CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority opinion in all respects with the exception of its reversal due to the statements made by Alison Cox. I do not believe that her testimony regarding that she believed the allegations against Stone were true rises to the level of palpable error and respectfully dissent on this issue.
The standard to constitute palpable error is a very high one, as illustrated by the Supreme Court's review in Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006):
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(Internal notes and citations omitted).
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.
When Cox's comments are viewed in light of all the trial testimony and evidence supporting Stone's guilt, I do not believe there is a substantial possibility that her testimony seriously affected the overall fairness of the trial. Accordingly, the high standard palpable error cannot be met in this case. I would affirm on this issue. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Frankfort, Kentucky