RENDERED : APRIL 21, 2011 TO BE PUBLISHED

,;VUyrrMr

Gaud of ~tnfurhv

2009-SC-000084-DG

RONALD BIRDSONG

V.

APPELLANT

ON REVIEW FROM COURT OF APPEALS CASE NO . 2007-CA-000941-MR FAYETTE CIRCUIT COURT NO . 06-CR-000142

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT AFFIRMING Ronald Birdsong received a twelve-year sentence following a jury conviction for Robbery, Second-Degree and Persistent Felony Offender, FirstDegree . This Court granted discretionary review to address whether a defendant's intimidating conduct, to wit: aggression against inanimate objects - without an explicit threat of bodily harm to a person - is sufficient force to constitute Robbery, Second-Degree . We find it is. Facts On June 21, 2005, with a bandana over his nose and mouth, Ronald Birdsong ran into the Fifth Third Bank on Bryan Station Road in Lexington, Kentucky . He burst through the gate separating the teller area from the

customer line. He moved the gate forcefully enough to create a loud bang when the gate hit the wall . And, the gate locked behind him. Clustered at one employee's computer, four bank tellers were present. The tellers hid under the counter. Birdsong ordered them to "get up" and "give him the money." In doing so, he pulled a printer off the shelf under the counter near the tellers . One teller arose and opened the drawers . Birdsong emptied the drawers . When the teller told him he had all of the money, Birdsong ran toward the exit. Unable to unlatch the gate leading to the customer area, he leapt over the gate and on to a nearby table, overturning a computer monitor in due course. Birdsong fled from the bank . Following the theft, the police investigated . They released to the media a still photograph of the perpetrator from the bank's surveillance camera . Subsequently, they received a tip implicating Birdsong. Birdsong was in police custody on unrelated charges. When detectives interviewed him, he confessed to taking the money from the bank. Birdsong stood trial for Robbery, Second-Degree and Persistent Felony Offender, First-Degree . At trial, two bank tellers testified . One teller testified Birdsong screamed at them to "get up," "give me the money," and "open the drawers ." She said Birdsong was really loud. And, she complied with his orders because she was afraid of him based on his tone of voice . He screamed at her. However, she

admitted Birdsong did not hit her or threaten to hit her. The second teller confirmed Birdsong did not make any explicit verbal threats against them or brandish a weapon. Birdsong did not assert an innocence defense . Rather, he argued he did not use force or threaten the use of force during the crime ; therefore, the jury could not find him guilty of Robbery, Second-Degree. In response, the Commonwealth argued Birdsong's behavior constituted an implied threat to use force against a person and this was sufficient for a Robbery, Second-Degree conviction . The trial court denied Birdsong's Motions for Directed Verdict . The jury convicted Birdsong of Robbery, Second-Degree and Persistent Felony Offender, First-Degree . The jury recommended and the trial court imposed a twelve-year sentence. Birdsong appealed his convictions to the Court of Appeals . There, he argued the jury could not convict him of Robbery, Second-Degree because the statute required he "use or threaten the use of physical force on another person."' The evidence demonstrated he injured no one and his physical aggression toward inanimate objects, to wit: bursting through the gate, pulling off the printer, and knocking over a computer monitor, were not a "threat to use physical force against another person ." He argued the Commonwealth had failed to prove an essential element of the. offense thus the trial court erred by denying him a directed verdict . 1 KRS 515 .030 .

In response, the Commonwealth argued Birdsong's conduct provided a sufficient basis for the jury to infer Birdsong threatened the use of force on another person . The Court of Appeals agreed and affirmed Birdsong's convictions . Making the same arguments he made in the lower courts, Birdsong sought review in this Court. Analysis Birdsong alleges the trial court erred by failing to direct a verdict on Robbery, Second-Degree . Under our law, the trial court must grant a directed verdict when, taking the evidence in the light most favorable to the Commonwealth, it would be clearly unreasonable for the jury to find guilt. 2 Moreover, the standard of review for this Court on appeal is "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is a defendant entitled to a directed verdict ."3 KRS 515 .030 defines Robbery, Second-Degree as: A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the use ofphysical force on another person with intent to accomplish the theft. (Emphasis

added .)

2 Commonwealth v. Benham, 816 S .W.2d 186 .(Ky . 1991). 3 Benham at 187.

As Birdsong correctly notes, the Commonwealth must prove the defendant's guilt beyond a reasonable doubt on every element of the offense. 4 Thus, the question for this Court is whether aggression toward inanimate objects in the presence of others during a theft sufficiently "threatens the use of physical force on another person." The answer to this question is a matter of statutory construction . Birdsong argues the statute requires an explicit threat against a person. Since Birdsong made no explicit threats against the bank tellers, the tellers simply inferred based on Birdsong's conduct that he would hurt them if they did not comply with his demand for money. Birdsong's conduct and the tellers' inferences therefrom are not sufficient to constitute Robbery, Second-Degree . The Commonwealth argues the threat of the immediate use of physical force was implicit from Birdsong's actions which is sufficient to satisfy the statute . When interpreting statutory language, certain fundamental principles of statutory construction guide us . First, this Court must give the statute's words their usual, ordinary, and everyday meaning .-5 Second, we "may not interpret a statute at variance with its stated language ."6 Thus, we turn now to the dictionary definition of "threaten."

4 In re Winship, 397 U.S . 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) . 5 Thompson v. Bracken County, 294 S.W.2d 943 (Ky . 1956) . 6 Layne v. Newberg, 841 S .W.2d 181, 183 (Ky. 1992) .

The American Heritage Dictionary defines "threaten" as "1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992) . Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id. Based on these definitions and our review of the record, we cannot say it was clearly unreasonable for the jury to find Birdsong threatened the use of physical force on another person . Birdsong entered the bank wearing a bandana. He caused a loud noise when he entered the teller area by slamming the gate into the wall. He gave orders to the tellers in a loud voice . He pulled a printer onto the floor from a shelf near where the tellers hid under the counter . It was not unreasonable for the jury to conclude Birdsong expressed an intention to inflict pain or injury or that his behavior indicated danger or harm. Moreover, it is clear from the tellers' testimony that they were afraid of Birdsong, that they "regarded [him] as a possible danger." Whether the conduct at issue constitutes Robbery, Second-Degree is not readily answered by existing precedent . However, our prior precedent supports this interpretation . In Williams v. Commonwealth, this Court recognized that the threat of physical force is the "gravamen" of Robbery, Second-Degree .? Williams robbed a convenience store by pointing to an unidentifiable bulge in his pocket while stating, "Do you want your life?" Williams stood trial for Robbery, First-Degree . 7

721 S.W .2d 710 (Ky. 1986) .

At trial, the store clerk testified he believed "maybe" Williams had a "weapon or something ." The police did not recover a gun. This Court held "[w]ithout an instrument's ever being seen, an intimidating threat albeit coupled with a menacing gesture cannot suffice to meet the standard necessary for a first-degree robbery conviction ." 8 The Court remanded Williams' case for retrial on a charge "no greater than robbery, second-degree ."9 In Lawless v. Commonwealth, Ms. Lawless approached the bank teller with the hood of her jacket over her head and partially obscuring her face . t o She kept her right hand in her pocket and handed the teller a note that read "hand over all the money, fast and quiet with no dye packs ." Lawless told the teller to put the money in a bag. The teller used the garbage bag from the trash can under her counter . Based on Lawless keeping her hand in her pocket, the teller and another bank customer believed Lawless had a gun. Lawless walked out and away from the bank . Officers arrested Lawless quickly. They found the garbage bag and the money but no gun. Lawless stood trial for Robbery, First-Degree . At trial, she argued no one was injured; she was not armed with a deadly weapon, and she did not use or threaten the use of a dangerous instrument. Therefore, her conduct was not Robbery, First-Degree. This Court agreed.

8 9

Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky. 1986) . Id.

10 323 S.W .3d 676 (Ky. 2010) .

Relying on Swain v. Commonwealth, this Court reiterated that menacing gestures are insufficient to constitute Robbery, First-Degree . I' "No amount of intent or intimidation by a robber can turn a toy gun, or a stick, or a finger in the pocket" into a deadly weapon that would satisfy KRS 515.020(b) ."12 Because Lawless never mentioned a gun or other weapon, the trial court should have directed a verdict on Robbery, First-Degree . Lawless also contended the trial court erred by failing to instruct the jury on Theft By Unlawful Taking as a lesser included offense of Robbery. This Court found the trial court did not err because no rational juror could have believed that Lawless's demand for money was not accompanied by a threat of physical force . Her "hand in the pocket" demeanor was clearly intended to further the theft by creating the impression she was armed . And, the teller testified Lawless's demeanor had its intended effect. In this case, Birdsong demanded money and used aggression toward inanimate objects . The tellers believed Birdsong would harm them if they did not comply with his demand for money. Based on the foregoing case law, we can conclude that Birdsong's conduct in this case was Robbery, Second-Degree. Further, our conclusion in this matter is supported by case law from other jurisdictions. 11

887 S.W .2d 346 (Ky. 1994) .

12

Quoting Wilburn v. Commonwealth, 312 S .W .3d 321 (Ky. 2010) overruling Merritt v. Commonwealth, 386 S.W.2d 727 (Ky. 1965) (any object meant to convince a victim

that it is a gun or other deadly weapon and does so convince him is one) .

The Federal Bank Robbery statute criminalizes taking money from a bank by force and violence or by intimidation . 13 "Intimidation" has been defined as "conduct and words . . . calculated to create the impression that any resistance or defiance by the [teller] would be met by force." 14 The federal courts define what constitutes "intimidation" by examining whether the defendant's conduct and words created circumstances reasonably calculated to produce fear . The victim's reaction is relevant to the determination but not conclusive . However, the defendant's intent to cause fear is irrelevant . The focus is on whether the acts of the defendant can reasonably be expected to produce intimidation . Generally, a defendant's invasion of the bank's teller area is sufficient to constitute intimidation . In United States v. Woodrup, the defendant entered the bank, lunged at the teller and vaulted over the teller counter. 15 Then, he put the money from the teller drawers in his jacket and left the bank . He did not present a note, brandish a weapon, or make an oral demand for money. The Fourth Circuit asked whether an ordinary person in the teller's position would reasonably infer a threat of bodily harm from Woodrup's conduct . The Court concluded a reasonable person would feel threatened and affirmed Woodrup's robbery conviction . 13

18 U.S.C .A . § 2113(a) .

14

United States v. Waldon, 206 F .3d 597, 604 (6th Cir. 2000) (citation and internal

15

86 F.3d 359 (4th Cir. 1996) .

quotation marks omitted) .

In United States v . Gipson, the defendant committed two bank robberies while wearing a black mask. He ordered the bank employees to the ground and came over the counter towards them before grabbing money . 16 The Eighth Circuit found this conduct constituted intimidation sufficient for a robbery conviction . Other state courts have addressed this issue as well. Under these jurisdictions' analyses, the defendant's conduct must be objectively menacing . No special words or conduct are required . The courts consider the totality of the circumstances including the victim's response . However, consideration of the victim's fear is subjected to an objective test of whether a reasonable person in the teller's position would have perceived a threat of harm based on the defendant's conduct. Missouri's Robbery, Second-Degree statute states "a person commits the crime of robbery in the second degree when he forcibly steals property ." 17 "Forcibly steals" means "using or threatening the use of physical force upon another person . . . ."18 This is consistent with our KRS 515 .030 . In State v. Neal, the Missouri Court of Appeals held "[tlhe threat of physical harm need not be explicit; it can be implied by words, physical

16

383 F .3d 689 (8th Cir . 2004) .

17

RSMo 569.030(l) .

18

RSMo 569.010(1) . 10

behavior or both." 19 Neal took money and alcohol from a convenience store after threatening the clerk, slamming his hands on the counter, and exposing himself to the clerk . The Court found this conduct sufficient to constitute robbery. Oregon's Robbery, Third-Degree statute prohibits the use of or threatened use of physical force upon another person during a theft. 20 This is similar to KRS 515 .030 . In State v. Hall, the defendant robbed a McDonald's restaurant by . approaching a worker and telling her to empty the cash register drawer . The Supreme Court of Oregon held "if the context in which the demands were made supports a reasonable inference that the person implicitly threatened the immediate use of physical force if the victim did not comply, a trial court does not err in denying a motion for judgment of acquittal . . . ."21 Having reviewed the statutory language, afforded its terms their plain meaning and having examined case law from our own jurisdiction and others, we opine a jury can find a defendant guilty of Robbery, Second-Degree when the defendant demands money and in making the demand, acts aggressively toward inanimate objects nearby. While the victim's or victims' perception of the aggressive behavior as a personal threat to him/her is not controlling, it is a factor the jury can consider in the totality of the circumstances . Therefore, we

19

36 S.W.3d 814, 816 (Mo . App. 2001) .

20

ORS 164 .395(1) .

21

966 P.2d 208, 211 (Or. 1998) .

affirm Birdsong's convictions for Robbery, Second-Degree and Persistent Felony Offender, First-Degree . All sitting. Abramson, Cunningham, Noble, Schroder and Scott, JJ., concur. Venters, J ., dissents by separate opinion in which Minton, C .J ., joins . VENTERS, JUSTICE, DISSENTS BY SEPARATE OPINION : I respectfully dissent. The Majority has concluded herein that the elements of second-degree robbery in KRS 515.030(1) were satisfied by Birdsong's aggressive demand for money, and his use of force against inanimate objects . Because he never used physical force against another person, and made no words or gesture to express or imply that he would use such force upon a person if his demand for money was denied, he did not commit second-degree robbery . The Majority cites a number of different meanings that the English language ascribes to the word "threaten," which, in effect, acknowledges the ambiguity inherent in KRS 515 .030(1)'s use of the word. Rather than construing the statute to incorporate all of the possible meanings of "threaten" as does the Majority opinion, I submit for reasons stated below that the General Assembly intended the word "threaten" as an active verb, describing the conduct of the accused . Used accordingly, to "threaten" means to express or imply by words or gestures, a warning that physical force will be employed to achieve an objective, for example, to enforce the demand for money. It is not, in the context of KRS 515.0303(1), used as a passive verb describing one's state of being, as a source of danger perceived by another, for the possibility of some unpleasant consequence . The Majority's use of the latter definition to the facts 12

of this case enables its conclusion that Birdsong's behavior and aggressive demand for money posed a threat of harm to those around him, even though he never expressed or implied with words or gestures in any conceivable way that physical force might be used upon anyone . I believe that interpretation is inconsistent with the legislative intent implicit in KRS 515.030, and therefore dissent. The Majority leans heavily upon our opinion in Lawless v. Commonwealth, 323 S .W .3d 676 (Ky. 2010) . I respectfully submit that in Lawless, we applied the very same definition of "threaten" that I suggest should be applied here, although its application to the facts of Lawless compelled a different result. Lawless was subject to a second-degree robbery charge because she actively communicated an implied threat of physical force when she held her hand in her pocket and made gestures to imply that she had a gun . Such a gesture is without question a specific threat to use of physical force upon the persons present. In Williams v. Commonwealth, 721 S .W.2d 710 (Ky. 1986), also relied upon by the Majority, the robber said to the victims, "Do you want your life?" That too, is an unambiguous communication that expresses or implies an intention to do harm to a person if his demands were resisted . Birdsong made no such gestures and spoke no such words, nor did he otherwise express or imply any intention to use force against anyone . To be sure, Birdsong's conduct put those present in fear, but he did not "threaten the immediate use of physical force upon another person."

13

Prior to the 1974 enactment of the Kentucky Penal Code (KRS Chapters 500 through 534), robbery was defined by our common law as "the act of feloniously and forcibly taking from the person of another, goods or money by violence or by putting him in fear ." Correll v. Commonwealth, 317 S .W.2d 886 (Ky. 1958) (Citations omitted; Emphasis added) . Our pre-penal code law was consistent with the interpretation the Majority now reads into the Kentucky Penal Code . In Williams, 721 S.W.2d. at 712, we noted that the sections of the Model Penal Code (Article 222.1), which informed the drafters of the Kentucky Penal Code, used the following phrase as an element of robbery : "(b) threatens another with or purposely puts him in fear of immediate serious bodily injury ." (Emphasis added .) Thus, the Model Penal Code is consistent with our prepenal code notion of robbery to the extent that both include among the elements of robbery, conduct putting someone in fear of injury. If, with conscious awareness of the Model Penal Code language and our common law definition, our legislature intended to retain within Robbery in the Second Degree (KRS 515 .030) the element of putting another in fear, it would have used that essential language . By omitting that phrasing and using the verb "threatens" in conjunction with another active verb, "uses," the General Assembly intended "threatens" to mean the expressed or implied communication by the perpetrator of an intent to use force, not merely any conduct that puts another person in fear. Our criminal code attains fairness and justice because it attempts to establish objective criteria by which we must judge the conduct of others. It 14

does so in the case of robbery second-degree by identifying the specific conduct that will subject one to punishment as a robber . The Majority conflates the objective act of making a threat to use physical force with the subjective effect that may be felt by others. An aggressive demand expressed under scary circumstances is not an objective substitute for the actual expression, by words or gestures, of threat to use immediate physical force . The Majority unhinges the conduct of the accused from objective requirements of our statute as it is now written, and binds it to the subjective response of others, contrary to the language of the statute. Where, along the sliding scale between a polite request for money to which one is not entitled and the aggressively hostile and frightening demand does theft or attempted theft become robbery? Does the vagrant in a dark street at night become a robber if, because of his scary countenance, a passerby is too frightened . to deny his request for a handout? The Majority opinion cannot answer that question, and we are left with a caseby-case process to determine what circumstances may authorize a robbery prosecution . Prosecutors, judges, and juries, will differ in their respective views, and so we can have uneven or discriminatory prosecution . The answer can be found where it ought to be found, in the statute. If the vagrant, by words or gestures, expresses or implies an intention to use physical force if his request is denied, then he is a robber. The conduct qualifying him as such can be ascertained from the clear, concrete and objective evidence, and is not dependent upon the degree of fear that one might infer from his presence .

15

Prior to our decision in Wilburn v. Commonwealth, 312 S.W .3d 321, (Ky. 2010), we had allowed the objective element of "deadly weapon" for first-degree robbery to be satisfied by the victim's subjective fear that the robber had a weapon, even when there was no evidence that a weapon actually existed . After years of adhering to our common law conception of armed robbery despite clear statutory language to the contrary, in Wilburn we restored the objectivity to robbery first degree by requiring evidence that an actual, not imaginary, weapon was used. We recognized in Wilburn that no amount of intimidation by the robber can turn a finger in the pocket into a gun. By the same token, no amount of fear on the part of the victim can turn an aggressive demand for money into a specific threat of immediate force against a person. As we did in Wilburn with the deadly weapon element of robbery first degree, we should now

remove the vestiges of our common law past from second-degree robbery, and recognize that the statutory language "threaten[ing] the immediate use of physical force upon a person" does not mean "putting another in fear." It requires an expressed or implied threat, communicated by gestures or words, of force upon another person . A frightfully aggressive appearance from which one might infer the use of such force does not satisfy the requirement of our statute. For the foregoing reasons, I respectfully dissent . Minton, C .J ., joins .

COUNSEL FOR APPELLANT : Linda Roberts Horsman Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentuc Michael John Marsch Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601-8204 Jason Bradley Moore Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601-8204

RENDERED : APRIL 21, 2011 TO BE PUBLISHED

,,7uyrtme Courf of ~6nfurkV 2009-SC-000170-MR

TROY ANTHONY TUNSTULL

V.

APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A . C. MCKAY CHAUVIN, JUDGE NOS. 07-CR-00700 AND 08-CR-01155

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE SCHRODER AFFIRMING Troy Anthony Tunstull appeals as a matter of right from his conviction of four counts of second-degree robbery and. being a first-degree persistent felony offender, for which he was sentenced to a total of twenty years' imprisonment . Appellant raises as error the trial court's 1) denying his motion for directed verdict as to second-degree robbery ; 2) failing to give instructions on theft by unlawful taking and facilitation to robbery ; 3) ruling that he failed to make a prima facie showing of purposeful discrimination in the Commonwealth's use of a peremptory challenge ; 4) failing to strike three jurors for cause; 5) denying his motion for funds to hire an expert; 6) permitting the Commonwealth to introduce evidence of out-of-court identifications where he was not provided the opportunity to cross-examine the witnesses ; and 7) refusing to grant a

mistrial when a detective's testimony revealed he had a prior criminal record . We affirm. In a jury trial which commenced on September 29, 2008, Appellant was tried on five counts of first-degree robbery in connection with five bank robberies which occurred in the Louisville area between April 2006 and October 2006 . 1 The first incident occurred on April 17, 2006, at the PNC Bank at 3343 Newburg Road . Bank tellers Stephanie Lafon and Donna Magee testified that a man wearing a ski mask and "covered from head to toe" ran into the bank and jumped up on the counter with a blue pillow case in his hand . Lafon testified that the man said, "You all know what time it is ." Magee recalled the man saying, "You know what I'm here for. You know what I want." The man grabbed Lafon's hand and had her hold open the pillow case and put money in it. When the man turned, Magee placed bait money in the bag . The man then left out the front door . Lafon had seen the man arrive in a four-door silver car and get out of the passenger side . The second incident took place on May 1, 2006, at the Fifth Third Bank at 5393 New Cut Road . Four witnesses (two bank tellers, the branch manager, and a customer) testified as to the event. According to these witnesses, two men rushed into the bank, disguised with wigs, baggy clothes, sunglasses, and gloves, and announced, "You know what time it is." One of the men jumped

Four counts under Indictment No . 07-CR-00700, joined with one count under Indictment No . 07-CR-01273. Indictment No. 07-CR-01273 also charged Appellant with two additional counts of first-degree robbery in connection with two 1998 robberies, which were severed for purposes of trial and are not at issue in this case. 2

over the counter, and took money out of the tellers' drawers and put it in a bag. The other man stood near the door with his hand in his pocket and repeatedly yelled "Time!", in an effort to encourage the other man to hurry. The men left the building quickly with the bag of money. The third incident took place on June 29, 2006, at Central Bank, located at 4640 Taylorsville Road . Bank tellers Lauren Armstrong and Daniel Spencer testified as follows . Shortly after 10:00 a.m., a dark red or maroon, four-door, older model car without a license plate backed up to the bank . Armstrong testified that a man exited the car on the passenger side and pulled a mask over his face . The man ran into the bank yelling, "Give it up! Give it up!" Spencer testified the man was wearing a solid white t-shirt, black baggy pants, and a black hat, and had a black and white bandana tied around his face . Armstrong threw money on the counter, and the man grabbed it. The man then ran out and got into the passenger side of the car. Spencer believed it was the same man he had seen running across the parking lot approximately twenty minutes earlier. Spencer told police that the man resembled a bank customer named Robert Harp . Spencer later identified a Chevy Caprice in a nearby apartment complex parking lot as the car he had seen at the bank . The Louisville Metro Police Department determined that the car belonged to a Laverne Westin . 2

2 In his confession and trial testimony, Appellant acknowledged that he knew Laverne Westin.

The fourth incident occurred on August 11, 2006, at the National City Bank at 5610 South Third Street. The Commonwealth presented testimony from seven witnesses (four bank tellers, the bank manager, and two customers) . According to these witnesses, an African-American man entered the bank, pointed a gun at the tellers behind the counter, and demanded money. The man was wearing sunglasses, a black baseball cap, a long-sleeve jacket, black shorts, and tennis shoes. As the tellers placed the money on the counter, the man put it in a bag and then ran out the side door. The fifth incident took place at the same branch of National City Bank on October 23, 2006 . The same four tellers and bank manager who had been present during the August 11, 2006 robbery were again present. These five witnesses, along with an additional bank teller and a customer, testified as to what occurred. According to these witnesses, an African-American man entered the bank through the side door and demanded money in a loud, aggressive voice . The bank employees/ witnesses who had witnessed the August robbery believed he sounded like the same man that had committed that robbery. However, this time, no one saw a gun. The man wore dark clothing, a black baseball cap, and white gloves, and had an unshaven face . The tellers handed the man money, which he put in a bag. When the man left, one teller followed and saw a red Chevrolet Cobalt, with the man inside, driving off quickly. The bank manager was able to read the license plate number, which was given to the police .

Police learned that the Cobalt had been leased by Enterprise Rent-A-Car to Sharonda Sloss. The car was located that night in the parking lot of the Fern Creek Wal-Mart, where Sloss was employed . Police followed Sloss when she left work that evening and pulled her over. Sloss was taken to the police station for questioning, and her car was processed for evidence . Fingerprints matching Demond Tunstull, Appellant's cousin, were found on the car. None of the fingerprints matched Appellant's . At the police station, Sloss allegedly told Detective Larry Duncan that Appellant and Demond had taken the car around 1 :00 p.m. while she was at a healthcare clinic, and had used it to commit the robbery.3 Sloss was in a relationship with Appellant at the time, whom she knew by the name Naim Abdul Jalil. Sloss also allegedly identified Appellant in still photographs made from the National City Bank surveillance video . A search warrant was executed at Sloss's apartment on October 24, 2006. Police retrieved a Kentucky driver's license for Naim Abdul Jalil, a Halloween mask, packaging from two Halloween masks, a black hooded jacket, and a black nylon insulated bag. No cash or guns were found in the apartment. FBI agents arrested Appellant at Sloss's apartment on February 12, 2007, and transported him to the United States Marshal's Office for

3 At trial, Sloss denied making this statement, which was subsequently introduced through the testimony of Detective Duncan pursuant to KRE 801A(a) (1) . To the contrary, Sloss testified that she had never loaned her car to Appellant or Demond, nor had they taken it without her permission . 5

questioning. Appellant initially denied any knowledge of the robberies, but, after being shown the bank surveillance photos and told that Sloss's car had been used in a robbery, subsequently admitted to them all. This initial interrogation, which lasted a little over two hours, was not recorded. Appellant was then transported to the Louisville Metro Police Department (LMPD) headquarters where a taped statement was taken. Therein, Appellant admitted that he had committed the crimes at issue. This taped confession was played for the jury at trial. Appellant testified in his own defense and denied committing the robberies . He testified that he falsely confessed to the crimes to satisfy the police, in order to protect his family. Appellant testified that he suspected that his cousin Demond Tunstull was involved after he (Appellant) was arrested and the police informed him that Sloss's car had been used in a robbery. Appellant testified that he had loaned the car to Demond on October 23, 2006, and that Demond had acted nervous when he returned the car and had advised Appellant not to use it because it was "hot" . Appellant testified that he felt that he should protect Demond, with whom he had been raised and whom he loved like a brother . Appellant testified that people would often mistake them for brothers and call them twins because they looked so much alike .4 Appellant testified that the law enforcement officials who conducted his interrogation told him that they would arrest Demond, Sloss (his girlfriend), his mother, and his

4 A photograph of Demond Tunstull was introduced into evidence through another defense witness .

brother, if he did not claim responsibility for the robberies . Appellant explained that in his confession he was repeating and agreeing with details the police gave him about the robberies, and, in order to protect his family, that he added in his own details to convince the police that he had done the robberies . Appellant testified that he was now telling the truth, because, although he still loved Demond, he felt like Demond had abandoned him and left him in the lurch . The trial court granted Appellant's motion for directed verdict as to firstdegree robbery for four of the five counts (the exception being the August 11, 2006, National City robbery where a gun was shown), finding the evidence insufficient to establish first-degree robbery, but sufficient to support seconddegree robbery . The trial court rejected Appellant's request for theft by unlawful taking instructions on all the counts, and rejected Appellant's request for facilitation instructions, with the exception of one count. The jury was ultimately instructed on second-degree robbery/ complicity as to the April 17, 2006 (PNC Bank), May 1, 2006 (Fifth-Third Bank), and June 29, 2006 (Central Bank) incidents ; first- and second-degree robbery as to the August 11, 2006 (National City Bank) incident ; and second=degree robbery/ complicity and facilitation to second-degree robbery as to the October 23, 2006 (National City Bank) incident . The jury found Appellant guilty of second-degree robbery as to the April 17, 2006, May 1, 2006, June 29, 2006, and October 23, 2006 incidents . The jury acquitted Appellant of any charges relating to the August 11, 2006

(National City Bank) incident . The jury subsequently found Appellant guilty of being a first-degree persistent felony offender . Appellant was ultimately sentenced to a total of twenty years' imprisonment. Appellant appeals to this Court as a matter of right, alleging a number of trial errors .

SUFFICIENCY OF THE EVIDENCE AS TO SECOND-DEGREE ROBBERY Appellant first argues that the trial court erred in denying his motion for directed verdict as to second-degree robbery. Appellant moved for a directed verdict on all counts as to both first- and second-degree robbery . The trial court granted Appellant's motion as to first-degree robbery (with the exception of the August 11, 2006 robbery), but denied the motion as to second-degree robbery . KRS 515.030(1) provides that "[a] person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." On appeal, Appellant contends that the evidence was insufficient to convict him of second-degree robbery, in that there was no evidence that he used or threatened the use of physical force. We disagree. An individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself - the implication clearly being that if the employees or customers do not comply, that physical force will follow . See Lawless v. Commonwealth, 323 S.W .3d 676 (Ky. 2010) . Accordingly, the trial court did not err in denying Appellant's

motion for directed verdict as to second-degree robbery with respect to any of the counts in this case . FAILURE TO GIVE INSTRUCTIONS ON THEFT BY UNLAWFUL TAKING AND FACILITATION TO ROBBERY Appellant next argues that the trial court erred in denying his request for instructions on theft by unlawful taking over $300 on each count as a lesser included offense of second-degree robbery. A trial court's rulings on instructions are reviewed under an abuse of discretion standard. Ratliff v. Commonwealth, 194 S .W.3d 258, 274 (Ky. 2006) . An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense and, yet, believe beyond a reasonable doubt that he is guilty of the lesser offense . _Houston v. Commonwealth, 975 S.W .2d 925, 929 (Ky . 1998) . The trial court has no duty to instruct on a theory not supported by the evidence. Payne v. Commonwealth, 656 S .W.2d 719, 721 (Ky. 1983) . The evidence does not support the giving of a theft instruction as to any of the counts. Second-degree robbery requires that a person "uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." KRS 515.030(l) . Theft by unlawful taking requires only "control over movable property of another with intent to deprive him thereof ." KRS 514 . Theft is generally considered a crime against property, .030(1)(a) whereas robbery is considered a crime against a person . Morgan v. Commonwealth, 730 S .W.2d 935, 937-38 (Ky. 1987) .

Appellant argues that a juror could have reasonably believed that he took the money from the banks but that he used no physical force or threat of physical force, and therefore that theft instructions were warranted. We disagree . A threat does not have to be actual words, but can be communicated by conduct or a combination thereof. Lawless, 323 S.W.3d 676. As recognized previously, a person rushing into a bank, wearing a ski mask or otherwise disguised, and aggressively demanding money, carries with it an implied threat of physical force against the person(s) from whom the money is demanded if they do not comply . It is uncontroverted that all of the incidents at issue herein involved such facts .5 In light of this evidence, we believe no reasonable juror could conclude, as to any of the incidents, that Appellant was not guilty of second-degree robbery, yet guilty of theft. See id. (theft instructions not warranted where robber kept hand in her pocket, but did not make any verbal threats) Appellant further argues that the trial court erred in denying his request that the jury be instructed on facilitation to second-degree robbery on all the counts, on grounds that, based upon the evidence, the jury could have believed that Appellant was an indifferent getaway driver, or that he merely loaned Laverne Westin's car and Sharonda Sloss's car to his cousin Demond, which Demond then used to commit the robberies . The trial court granted 5 Had, for example, Appellant simply come into the bank, swiped money off of the counter and run, a theft instruction may have been warranted. 6 While Swain v. Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994), concluded theft instructions were warranted under similar facts, albeit involving a convenience store, the case appears to be an anomaly and is limited to its own facts. 10

Appellant's request for a facilitation instruction as to the October 23, 2006 (National City Bank) incident based on Appellant's testimony that he had loaned Sloss's car to Demond. The trial court denied the request as to the other counts, finding the evidence insufficient to support a facilitation theory KRS 506.080(1) provides : A person is guilty of criminal facilitation, when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. "Facilitation reflects the mental state of one who is `wholly indifferent' to the actual completion of the crime ." Perdue v. Commonwealth, 916 S .W.2d 148, 160 (Ky. 1995) . There was no evidence in this case to support a reasonable inference that Appellant was "wholly indifferent" to the completion of the April 17, 2006, May 1, 2006, and June 29, 2006 robberies .? Id. ; Dixon v. Commonwealth, 263 S .W.3d 583, 587 (Ky. 2008) . Rather, the evidence as to these counts supported either the theory that Appellant was an active participant in these robberies (whether as the robber or as a getaway driver), or, if the jury chose to believe Appellant's trial testimony, that Appellant was not involved whatsoever. See White v. Commonwealth, 178 S .W .3d 470, 490-91 (Ky. 2005) . We further agree with the trial court that the evidence did not support a finding that Appellant was an "indifferent" getaway driver, in light of the fact that the getaway driver in this case (whoever it was), dropped off, and 7 The issue is moot as to the August 11, 2006 robbery, of which Appellant was acquitted of any charges.

waited for, the individual who robbed the bank . Accordingly, the trial court did not err in denying Appellant's request for a facilitation instruction as to the remaining counts. FAILURE TO MAKE PRIMA FACIE SHOWING OF PURPOSEFUL DISCRIMINATION IN THE COMMONWEALTH'S USE OF A PEREMPTORY CHALLENGE Appellant next argues that the trial court erred in concluding that he had not made a prima facie showing of purposeful discrimination in the Commonwealth's use of a peremptory strike against an African-American juror. Following voir dire, the Commonwealth used peremptory strikes against two African-American jurors . Appellant did not object to one of the strikes (a juror whom the Commonwealth had attempted to remove for cause based on her response to a question on voir dire), but did object as to Juror No. 219296, on grounds that this juror had said nothing during voir dire. Pursuant to Batson v. Kentucky, 476 U .S . 79 (1986), Appellant requested the Commonwealth provide its reason for using a peremptory strike against this juror. The trial court found that Appellant had not made a prima facie showing because the Commonwealth had used peremptory strikes against only two of the possible five African-American jurors .$ As such, the trial court found the Commonwealth was not required to articulate its reason for striking Juror No .

8 The Commonwealth further argued that it would not have used a peremptory strike against a sixth African-American juror who had been removed by random draw prior to the exercise of peremptory challenges . 12

219296. The trial court did order the Commonwealth, for avowal purposes, to submit a written reason under seal . 9 In Batson, the United States Supreme Court set forth a three-part test for determining whether a state's use of peremptory challenges violates the Equal Protection Clause : A defendant first has the burden of making a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if this showing is made, then the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror in question; and third, the trial court must then determine whether the burden of proving purposeful discrimination has been met. Chestnut v. Commonwealth, 250 S .W.3d 288, 300-01 (Ky. 2008) (citing Batson, 476 U.S . at 96-98) . To establish a prima facie case of discrimination based on race, the opponent of the challenge must show that: 1) he is a member of a cognizable racial group; 2) peremptory challenges are being exercised to remove from the venire persons of the defendant's race; and 3) the circumstances raise an inference that the exclusion was based on race. Batson, 476 U .S . at 96 . "Because the trial court is the best `judge' of the Commonwealth's motives in exercising its peremptory strikes, great deference is given to the court's ruling." Gray v. Commonwealth, 203 S .W.3d 679, 691 (Ky. 2006) (citing Wells v. Commonwealth, 892 S .W.2d 299, 303 (Ky. 1995)) . On appellate review, a trial court's denial of a Batson challenge will not be reversed unless clearly

9

Per the parties' briefs, the Commonwealth inadvertently neglected to write down the reason. Appellant does not allege bad faith on the part of the Commonwealth for its failure to do so. 13

erroneous . Chestnut, 250 S .W.3d at 302 (citing Hernandez v. New York, 500 U.S . 352, 369 (1991) and Washington v. Commonwealth, 34 S . W.3d 376, 37980 (Ky. 2000)) . In the present case, Appellant meets the first prong of the test because he is African-American . With regard to the second prong, there were five African-American jurors, of whom the Commonwealth struck two (one of which strikes Appellant did not object to), leaving three African-American individuals on the jury panel. Based on numbers alone, the trial court found that a prima facie case had not been made. Without more, we cannot say that the trial court clearly erred in its ruling. Chestnut, 250 S.W.3d at 300-02 . Cf. Washington v. Commonwealth, 34 S .W.3d . 376 (Ky. 2000) (prima facie showing made where Commonwealth used peremptory strike against only remaining African-American juror, to whom no questions had been directed on voir dire) . DENIAL OF MOTIONS TO STRIKE THREE JURORS FOR CAUSE Appellant argues that the trial court erred in failing to strike Juror Nos. 227428, 200949, and 195639 for cause. During voir dire, the prosecutor asked if any juror had been a witness to a crime . Juror No. 227428 asked to approach the bench and explained that he had been mugged by two men, four or five years ago, while he was outside walking. One of the men hit him in the face, knocking him to the ground, and causing him to lose two teeth . The juror noted the men were on a rampage that resulted in a total of fifteen victims, but that they were caught, pled guilty, and were serving thirty-year sentences . When the trial court asked if this meant that he would be a good juror for the 14

Commonwealth - because he had been victimized himself, wouldn't stand for it anymore and would want the defendant to "go down" for whatever it was said that he did - the juror responded "no", explaining that he was a high school teacher and that he had a group of twenty students he dealt with daily who were probably on their way to the judicial system. When the court asked if the experience would color his ability to be fair, the juror stated, "I don't think it will," and further agreed that he believed in the presumption of innocence, would require the Commonwealth to prove its case beyond a reasonable doubt, and could consider the entire penalty range. Later, during Appellant's voir dire, defense counsel reminded the jury that Appellant was charged with five separate bank robberies and posed the following question : "I want to ask you if that information alone makes it more likely to you that Troy Tunstull is guilty of those .robberies than a person who is just charged with one robbery?" Juror No . 203006 stated that he was "more inclined to think yes" because of the frequency . He then clarified that it does not mean he is guilty but makes it more likely. When defense counsel asked if any other jurors felt the same way, Juror No. 204968 raised his hand and agreed that the statistics made it hard to get it wrong five times . Juror No . 200949 then nodded her head in agreement and stated that it may be a mistake if you are in the wrong place at the wrong time once but that it "makes you question" when it is repeated over and over again. Juror No . 195639 agreed with these jurors, commenting that it "sounds like a pattern" and that it made it likely he committed the crimes but maybe not . 15

Appellant moved to strike Juror Nos. 227428, 203006, 204968, 200949, and 195639 for cause . As to No. 227428, the high school teacher, Appellant argued that his tone and commentary concerning his students indicated that he prejudges which people will end up in the judicial system . 10 The trial court denied the motion, finding that this reason did not rise to the level of cause. As to Juror Nos. 203006, 204968, 200949, and 195639, Appellant argued that these jurors believed that a person charged with multiple offenses was more likely to be guilty . The trial court denied the motions, finding that these jurors' answers were fair commentary and reasonable explanations with regard to the question posed . Juror No . 203006 was removed from the venire for other reasons, and Juror No . 204968 was subsequently removed by random draw. Appellant used peremptory strikes against Juror Nos. 227428, 200949 and 195639 . On appeal, Appellant contends that the trial court abused its discretion by failing to excuse Juror Nos . 227428, 200949, and 195639 for cause . The trial court is required to excuse a juror if there is a reasonable basis to believe the juror cannot be fair and impartial. RCr 9.36(1) . Whether a juror possesses a "`mental attitude of appropriate indifference' must be reviewed in the totality of the circumstances ." Montgomery v. Commonwealth, 819 S .W.2d 713, 718 (Ky. 1991) (quoting United States v. Wood, 299 U.S. 123, 145-46 (1936)) .

to

The defense argued for removal of this juror on other grounds as well, which grounds Appellant does not argue on appeal. 16

A

trial court's decision whether to excuse a juror for cause is reviewed for abuse of discretion . Shane v. Commonwealth, 243 S.W .3d 336, 338 (Ky. 2007) . Having reviewed the video record, we see no abuse of discretion as to the trial court's failure to strike any of these jurors for cause. The tone of Juror No . 227428 towards his students was not one of "prejudging" people, but was sympathetic in nature, more saddened by what he believed would be these students' futures . As to Juror No. 200949 and Juror No . 195639, we agree with the trial court that their answers were reasonable responses to the question posed by defense counsel, and did not indicate that they could not be fair or impartial. No abuse of discretion occurred . DENIAL OF MOTION FOR FUNDS TO HIRE EXPERT ON FALSE CONFESSIONS On February 20, 2008, Appellant filed a motion requesting funds to hire an expert on the psychology of false or wrongful confessions . The defense theory of the case was that Appellant falsely confessed in order to cover for his cousin Demond Tunstull, whom he loved like a brother. An ex pane hearing on the matter was conducted on March 5, 2008 . On March 10, 2008, the trial court entered an order denying the motion, finding that the employment of a false confessions expert was not reasonably necessary under the circumstances presented . Appellant renewed his motion for funds on the first morning of trial, following the Commonwealth's turning over last minute discovery indicating that only Demond's fingerprints were found on the car (Sloss's rental car) used in the October 23, 2006, National City robbery . The trial court again denied the motion. The court explained that lying to cover for 17

another person was not a false confession of the type for which expert testimony was necessary, as opposed to the types of situations where it is alleged, for example, that police used interrogation techniques which overcame a person's free will or made him believe that he did something he did not do. The court explained that it is the latter type situations that cause great concern to the court and give rise to the need for an expert. In this case, however, the allegation was that Appellant made a conscious decision to falsely confess, in order to protect his cousin . The trial court did not believe that an expert was necessary to explain this concept to the jury. On appeal, Appellant contends that the trial court abused its discretion in denying the motion for funds. In determining whether an indigent defendant is entitled to funding for an expert witness under KRS 31 .110(1) (b), a trial court must consider "1) whether the request has been pleaded with requisite specificity ; and 2) whether funding for the particularized assistance is `reasonably necessary'; 3) while weighing relevant due process considerations ." Benjamin v. Commonwealth, 266 S .W.3d 775, 789 (Ky. 2008) . A trial court's denial of a request for funds is reviewed for abuse of discretion. Id. (citing Davenport v. Commonwealth, 177 S .W.3d 763, 773 (Ky. 2005), and Dillingham v. Commonwealth, 995 S.W .2d 377, 381 (Ky. 1999)) . In this case, we cannot say the trial court abused its discretion in denying funds for an expert. Appellant testified that he falsely confessed to cover for his cousin Demond, whom he loved like a brother and wanted to protect . Appellant further testified that the police had also threatened to arrest 18

his mother, brother, and girlfriend (Sloss) - if he did not admit to the crimes.' 1 There was no allegation in this case that, for example, Appellant's confession was unreliable due to a mental condition, that his will had been overcome, or that police made him believe he did something he did not do. See Holloman v. Commonwealth, 37 S .W.3d 764 (Ky. 2001) . 12 Appellant's claim was simply that he falsely confessed to protect others. We agree with the trial court that the jury was fully equipped to evaluate Appellant's claim, and that there was no reasonable necessity for an expert. In his testimony, Appellant intelligently and clearly articulated his reasons for making what he claimed was a false confession .

In fact, it is clear that the jury believed Appellant's testimony in

part, finding him not guilty of one of the robberies he confessed to . 13 No abuse of discretion occurred . EVIDENCE OF OUT-OF-COURT IDENTIFICATIONS Detective Charles Mann testified for the Commonwealth regarding his investigation of the October 23, 2006, National City Bank robbery. On direct, In their testimony, the FBI agent and two detectives who were present for the interrogation denied having made any such threats . 12 As to the circumstances surrounding the confession, the evidence was that Appellant was arrested at Sharonda Sloss's apartment in the early afternoon of February 12, 2007, and taken to the U .S. Marshal's office in Louisville . The initial interview of Appellant, which was not recorded, began that afternoon, at around 1 :45 p.m. and ended at approximately 4 :00 p .m. The interview was conducted by an FBI Special Agent and two LMPD detectives . For approximately the first 50 minutes, Appellant denied involvement in the crimes, but subsequently admitted to them all. Because the Federal Building was closing, Appellant was transported to LMPD Headquarters, where a taped statement was taken from 5:37 p .m . to 6 :17 p .m. Appellant was offered food, drinks, and cigarettes, and allowed to use the restroom during the interrogations, and does not allege that he was physically mistreated in any way. 13 The August 11, 2006 robbery . 19

Mann testified that fingerprints matching Demond Tunstull were found on the vehicle used in the robbery (the Chevy Cobalt rented by Sharonda Sloss) . On cross-examination, defense counsel clarified with Detective Mann that no fingerprints matching Appellant's were found on the vehicle . Defense counsel then asked Mann about a call police had received from a woman named Marie Pulford who indicated that she had information concerning the robberies . In response to defense counsel's questions, Mann testified that he met with Pulford and another woman, at the other woman's home. The other woman wanted to remain anonymous because she was in a relationship with Demond Tunstull. Mann testified that he took a statement from Pulford and conducted a consensual search of the anonymous woman's home. Mann went on to testify (in response to defense counsel's questions) that, pursuant to the search, he collected clothing which he believed at the time might have significance as to the robberies, and a letter which indicated Demond Tunstull lived at that (the anonymous woman's) address. On re-direct, the Commonwealth asked Detective Mann if the anonymous woman was shown a surveillance photo from the October 23, 2006, National City Bank robbery. Mann responded that he showed both Pulford and the anonymous woman several surveillance photos . When the Commonwealth began to ask if either woman made an identification, defense counsel objected on hearsay grounds . The trial court sustained the objection, but agreed to allow the prosecutor to rephrase the question . The prosecutor thereafter showed Mann a particular photo, which Mann identified as having come from 20

the October 23, 2006 surveillance video from the National City Bank. The prosecutor elicited from Mann that he had shown the photo to the two women, that he had asked them if they could identify anyone in the photo, that he had asked them to write on the photo if they could identify someone in it, and that there was, indeed, writing on the photo. Detective Mann was not permitted to say what was written on the photo . The Commonwealth moved to admit the photo into evidence . The defense objected on hearsay grounds due to the writing on the photo (which identified Appellant as the person in the photo). The trial court sustained the objection. The trial court agreed with the Commonwealth, however, that the defense had opened the door (with its questions to Detective Mann designed to show Demond Tunstull was the actual perpetrator) with respect as to the question of why the police pursued Appellant rather than Demond Tunstull . Therefore, the court ruled that to the extent that the Commonwealth could answer this question with Detective Mann, the court would permit the Commonwealth to do this . The Commonwealth then asked Mann if he pursued the investigation further after meeting with the two women . Mann testified, over defense counsel's objection, that after talking to the women, everything pointed to Appellant being the "primary suspect ." On appeal, Appellant contends that implicit in Detective Mann's testimony was the fact that Pulford and the anonymous woman identified him as the man in the bank surveillance video . Neither Pulford nor the anonymous woman testified at trial . Appellant argues that Detective Mann's testimony 21

concerning the identification thereby violated his right to confront and crossexamine witnesses against him. We agree with Appellant that Detective Mann's testimony clearly implied that the women identified him as the person in the bank surveillance photo . Had the Commonwealth attempted to introduce this identification in its case in-chief, it would have been inadmissible as a violation of the Confrontation Clause, as neither woman testified at trial . See Crawford v. Washington, 541 U .S . 36 (2004) . However, in this case, the evidence was brought up in rebuttal to the defense's initial use of the existence of, and hearsay statements of, these two women to suggest that Demond Tunstull was the person who committed the robberies, and that the police inexplicably went after the wrong man Appellant . Accordingly, we cannot say the trial court erred in ruling that the defense opened the door with regard to this witness as to why the police pursued Appellant, rather than Demond. See Norris v. Commonwealth, 89 S .W.3d 411, 414-15 (Ky. 2002) . Appellant also assigns as error hearsay testimony by Detective Larry Duncan that Sharonda Sloss had identified Appellant in a photo taken from a bank surveillance video . Sharonda Sloss was called as a witness by the Commonwealth . Sloss testified that she rented the Chevy Cobalt (identified as the vehicle used in the October 23, 2006 robbery) to use to get to work because her car was not running . She testified that she had never loaned the car to Appellant or anyone else, nor had he, or anyone, ever taken it without her permission . She denied having told police in her interview following the 22

October 23, 2006, robbery that Appellant and Demond had taken her car and used it to commit the robbery while she was at a healthcare clinic . Following Sloss's testimony, the prosecutor informed defense counsel and the court that it intended to call Detective Larry Duncan for impeachment purposes, who would testify that Sloss had made the above statement . The prosecution indicated that it further intended to elicit from Detective Duncan that, in the same interview, Sloss had identified Appellant in a photograph made from a bank surveillance video . Defense counsel objected to the hearsay regarding the alleged identification of Appellant by Sloss, on grounds that the Commonwealth had not asked Sloss during her testimony whether she had identified Appellant in a surveillance photograph, and, hence, had not laid the required foundation for impeachment on that issue pursuant to KRE 801 . The trial court overruled the objection, believing that Sloss had been so asked . Duncan subsequently testified that he showed a photograph to Sloss, which was made from the October 23, 2006 National City Bank surveillance video, and that she identified the man in the photograph as Appellant . On appeal, Appellant contends that this testimony by Duncan was inadmissible under KRE 801A(a)(1) because Sloss had not first been asked about having made the identification during her testimony . We agree. KRE 80 IA(a) (1) allows admission of a prior inconsistent statement of a witness provided the witness testifies at trial and is examined about the statement, subject to a proper foundation pursuant to KRE 613 . KRE 613(a) requires, 23

before the prior inconsistent statement of a witness can be offered, that the witness "must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them." A review of the record confirms that Sloss was not asked during her testimony if she had identified Appellant in a surveillance photograph, or anything remotely similar thereto . The prosecutor and trial court were simply mistaken in their belief that she had been so asked. Because no foundation was laid, the hearsay was inadmissible under KRE 801 A(a)(1) . However, in light of the evidence in this case, we conclude the error was harmless . Appellant confessed to all of the robberies. Further, the jury heard evidence by way of the recorded confession, and testimony by a detective who was present for the interview, that Appellant was shown photographs made from the bank surveillance videos, including both National City robberies, and that Appellant confirmed that it was, in fact him, in the photographs . Appellant wrote "this is me" on the photographs, and signed his name. These photographs were shown to the jury, as was the photo from which Sloss allegedly made the identification . In light of the aforementioned evidence, we see no likelihood that the verdict was substantially swayed by the error, and hence deem the error harmless . Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) . DENIAL OF MOTION FOR MISTRIAL

24

Detective Duncan testified that while he was questioning Sloss, a search warrant was being executed at Sloss's apartment . Duncan received a call from the detective conducting the search that a driver's license with the name Naim Abdul Jalil was found in the apartment . Duncan testified that from the presence of the letter "T" in the driver's license number he was able to tell that the person with the license had changed his name, and then added "In fact, I've know this fellow since 19 . . . ." Defense counsel objected and moved for a mistrial, on grounds that there was no way that Duncan could know Appellant other than from his previous experience as a robbery detective . In a bench conference, the prosecutor stated that he did not know the detective was going make such a statement . The trial court denied the motion for a mistrial, and defense counsel declined the trial court's offer of an admonition. The prosecutor thereafter tried to steer the questioning back to imply that Duncan was able to ascertain Appellant's identity from the driver's license database . When the Commonwealth asked Duncan if he had cross-referenced the number and birthday with the driver's license database to find Appellant's name, Duncan responded that he looked into "a database" and was able to match it. Defense counsel immediately objected and moved again for a mistrial . The trial court acknowledged that Duncan's testimony "is a problem" and instructed the prosecutor to tell the jury it was a driver's license database, and also called Detective Duncan to the bench and advised him to specifically tell the jury that he was checking a driver's license database. Defense counsel again moved for a mistrial, arguing that the testimony indicated that Appellant 25

had a prior criminal record and that the bench conference with Detective Duncan highlighted this fact. The court again overruled the motion . Thereafter, the Commonwealth asked Duncan if by cross-referencing the driver's license database, he was able to ascertain Appellant's name. Duncan responded affirmatively . On appeal, Appellant contends that the trial court erred in denying his motions for a mistrial . Appellant argues that the statements of the robbery detective, Duncan, indicating that he had known Appellant for years and that he had found Appellant in "a database", revealed to the jury that Appellant had a prior criminal record, in violation of KRE 404(b) . 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. The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way[ .] Bray v. Commonwealth, 177 S .W.3d 741, 752 (Ky. 2005) (citations and internal quotation marks omitted) (overruled on other grounds by Padgett v. Commonwealth, 312 S .W.3d 336 (Ky. 2010)) . Whether to grant a mistrial is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed absent an abuse of that discretion . Id. We see no abuse of discretion. Duncan's remark that he had known Appellant since " 19 . . ." was fleeting, was not said in an accusatory tone, and did not indicate how the detective knew Appellant. Duncan's statement that he found Appellant's name in "a database" was made in the context of the prosecutor's questioning him about cross-referencing Appellant's changed 26

name and original name in the driver's license database. The detective did not indicate that he was referring to a robbery or otherwise criminal database, and we believe his subsequent specific acknowledgment that he found Appellant's original name through the driver's license database cured any prejudice . For the aforementioned reasons, the judgment of the Jefferson Circuit Court is affirmed . Abramson, Cunningham, Noble, and Scott, JJ., concur. Venters, J ., dissents by separate opinion in which Minton, C.J., joins . VENTERS, JUSTICE, DISSENTS BY SEPARATE OPINION: For two reasons I respectfully disagree with Majority's opinion on three of the five second-degree robbery charges : namely, the incident at the Fifth-Third bank on May 1, 2006, the incident at the Central Bank on June 29, 2006, and the incident at the National City bank on October 23, 2006 . 14 First, I believe the Majority expands the interpretation of the statutory language "threatens the immediate use of physical force" beyond the intent of the legislature . Second, even under the Majority's broad interpretation of that phrase, on the three incidents cited above, Appellant was entitled to an instruction on the lesser offense of theft by unlawful taking . I . A Theft Instruction Was Required Because Appellant's Conduct Was Ambiguous With Regard to the Element of Threatening the Use of Force

14

The incident in which a weapon was displayed and the incident in which force was actually used upon the bank teller very clearly satisfy the elements of robbery, and those charges were properly submitted to the jury . 27

Because I see it as the more egregious oversight, I will address the second point first. It is undisputed that no weapon or dangerous instrument was involved in any of three incidents. No physical force was used upon anyone . The perpetrators did not flourish or brandish a weapon or a dangerous object of any kind . They did not by words or gestures express or imply the presence of a weapon so as to threaten any person present. There were no words spoken or written, nor gestures made, to communicate the notion that physical force of any kind would be employed against any person if the theft was resisted . There was an aggressive demand for money under frightful circumstances . A reasonable jury could reasonably believe from the evidence introduced at trial and from the second-degree robbery instruction given, that neither Appellant nor any accomplice had "threaten[ed] the immediate use of physical force upon another person" as required by KRS 515 .030(1) . Even under the Majority's interpretation of what constitutes a threat to use immediate physical force, the facts here do not compel the finding that such a threat was made . In effect, by affirming the denial of a theft instruction, the majority opinion grants the Commonwealth a summary judgment on the essential element of robbery in question here: did Appellant, in the course of stealing money from the banks, "threaten the immediate use of physical force upon another person?" Reasonable jurors could very well disagree on the answer to that question . Yet the Majority has decreed it to be so . A reasonable juror could conclude that Appellant did not so threaten, in 28

which case he should have been exposed to criminal culpability for theft. By denying that option, the trial court forced the jury to choose between acquitting a thief and convicting him of robbery despite the lack of a threat to use immediate physical force against another person . Fidelity to the principles set by this Court in Swain v. Commonwealth, 887 S .W.2d 346 (Ky . 1994) compels the giving of a theft instruction . There, on three separate incidents to steal money from convenience stores, "appellant did not reveal or refer to any weapon. He merely demanded money while keeping his hands in his pockets ." Id. at 347 . We agreed that such evidence would not support a first-degree robbery charge (requiring the possession of a weapon) . However, because the menacing gesture of keeping a hand in the pocket might imply the possession of a weapon and the intent to use physical force if necessary to complete the theft, we held that an instruction on second-degree robbery and theft were required . As to the count in which appellant merely stated that he had a gun but did not flourish it, the trial court should have instructed on second degree robbery . It would not have been unreasonable for the jury to believe that appellant had no gun and if it so believed, a conviction for second degree robbery would have been authorized. Upon retrial of this count, the jury should be so instructed and authorized to find appellant guilty of first degree robbery or second degree robbery, depending upon what it believes from the evidence . As to the three counts in which no weapon was seen or mentioned but in which appellant demanded money while having at least one hand inside his clothing, the jury should have been instructed on robbery in the second degree and theft by unlawful taking. As to robbery in the second degree, the facts presented here are sufficient to constitute a threat of immediate physical force if the jury believes from the evidence there was such, or theft by unlawful taking if it believes there was no threat ofphysicalforce . Id. at 348 . (Emphasis added .) 29

Swain is compelling and squarely on point, but the Majority opinion relegates it to a footnote and declares it to be "an anomaly and limited to its own facts." Inconveniently, Swain's "own facts" differ in no material way from the facts present here. Swain is an "anomaly" that, according to Westlaw, has been favorably cited in subsequent appellate opinions at least 30 times, 10 of which are related to the very paragraph quoted above . We do no service to the dignity of this Court, much less to the litigants before us, by sweeping our binding precedent under the rug in such a cavalier fashion. Instead of relying upon Swain, the majority rests its case upon Lawless v. Commonwealth, 323 S .W .3d 676 (Ky. 2010) . However, in Lawless we voiced no disagreement with Swain and cited it favorably. We differentiated Swain, where the simple "hand-in-the-pocket" did not accompany any other gesture implying possession of a weapon and its inherent threat of force, from Lawless, where "not only did Lawless keep her hand in her pocket but that she made gestures as though she had a gun ." Id. at 678. Those additional distinguishing gestures, we concluded, were "clearly intended to further the theft by creating the impression that she was armed." Id. at 681 . Lacking the ambiguity present in Swain concerning the expression of a threat, Lawless properly concluded that the unambiguous gestures were calculated by Lawless to express the threat of bodily harm implicit in the possession of a weapon, leaving no room for a theft instruction .

30

Here, we have not even a hand in the pocket, nor any other gesture, to constitute the expression of a threat to use physical force. The conduct of Appellant and his accomplices at the three banks was, at most, ambiguous with respect to the expression of a threat to use force upon a person . The giving of a theft instruction is compelled by Swain and it is consistent with Lawless . I would therefore reverse the three second-degree robbery convictions cited above and remand for a retrial with instructions incorporating the lesser offense of theft, provided the evidence upon re-trial so warrants. II . The Majority Misconstrues KRS 515.030(1) With Respect To the Phrase "Threatens the Immediate Use of Physical Force" The phrase "threatens the immediate use of physical force" is ambiguous . In one sense, "threaten" is an active verb . As so used, to "threaten" would require an act, in words or gestures, to express or imply a warning that physical force will be employed to achieve an objective, for example, to enforce the demand for money. In another sense, "threaten" can be used as a passive verb, to mean simply a presence that imparts to others concern for the possibility of some unpleasant consequence. The Majority applies the latter construction to the facts of this case to reach its conclusion that Appellant's aggressive demands were threatening to those present and instilled in them a fear of physical harm, even if Appellant never expressed or implied with words or gestures that physical force might be employed . I believe that interpretation is inconsistent with the legislative intent implicit in KRS 515 .030, and therefore dissent. 31

Prior to the 1974 enactment of the Kentucky Penal Code (KRS Chapters 500 through 534), robbery was defined by our common law as "the act of feloniously and forcibly taking from the person of another, goods or money by violence or by putting him in fear ." Correll v. Commonwealth, 317 S.W .2d 886 (Ky. 1958) (Citations omitted ; Emphasis added) . Our pre-penal code law was consistent with the interpretation the Majority now reads into the Kentucky Penal Code. In Williams v. Commonwealth, 721 S .W.2d 710, 712 (Ky. 1986), we noted that the sections of the Model Penal Code (Article 222 .1), which informed the drafters of the Kentucky Penal Code, used the following phrase as an element of robbery: "(b) threatens another with orpurposely puts him infear of immediate serious bodily injury." (Emphasis added .) Thus, the Model Penal Code is consistent with our pre-penal code notion of robbery to the extent that both include among the elements of robbery, conduct putting someone in fear of injury. If, with conscious awareness of the Model Penal Code language and our common law definition, our legislature intended to retain within Robbery in the Second Degree (KRS 515 .030) the element of putting another in fear, it would have used that essential language. By omitting that phrasing, and using the verb "threatens" in conjunction with another active verb, "uses," the General Assembly intended "threatens" to mean the expressed or implied communication by the perpetrator of an intent to use force, not merely any conduct that puts another person in fear . Our criminal code attains fairness and justice because it attempts to establish objective criteria by which we must judge the conduct of others . It 32

does so in the case of robbery second-degree by identifying the specific conduct that will subject one to punishment as a robber. The Majority conflates the objective act of making a threat to use physical force with the subjective effect that may be felt by others. An aggressive demand expressed under scary circumstances is not an objective substitute for the actual expression, by words or gestures, of threat to use immediate physical force . The Majority unhinges the conduct of the accused from objective requirements of our statute as it is now written, and binds it to the subjective response of others, contrary to the language of the statute . Where, along the sliding scale between a polite request for money to which one is not entitled and the aggressively hostile and frightening demand does theft or attempted theft become robbery? Does the vagrant in a dark street at night become a robber if, because of his scary countenance, a passerby is too frightened to deny his request for a handout? The Majority opinion cannot answer that question, and we are left with a caseby-case process to determine what circumstances may authorize a robbery prosecution . Prosecutors, judges, and juries, will differ in their respective views, and so we can have uneven or discriminatory prosecution. The answer can be found where it ought to be found, in the statute . If the vagrant, by words or gestures, expresses or implies an intention to use physical force if his request is denied, then he is a robber. The conduct qualifying him as such can be ascertained from the clear, concrete and objective evidence, and is not dependent upon the degree of fear that one might infer from his presence.

33

Prior to our decision in Wilburn v. Commonwealth, 312 S .W.3d 321, (Ky .2010), we had allowed the objective element of "deadly weapon" for firstdegree robbery to be satisfied by the victim's subjective fear that the robber had a weapon, even when there was no evidence that a weapon actually existed . After years of adhering to our common law conception of armed robbery despite clear statutory language to the contrary, in Wilburn we restored the objectivity to robbery first degree by requiring evidence that an actual, not imaginary, weapon was used. We recognized in Wilburn that no amount of intimidation by the robber can turn a finger in the pocket into a gun. By the same token, no amount of fear on the part of the victim can turn an aggressive demand for money into a specific threat of immediate force against a person . As we did in Wilburn with the deadly weapon element of robbery first degree, we should now

remove the vestiges of our common law past from second-degree robbery, and recognize that the statutory language "threaten[ing] the immediate use of physical force upon another person" does not mean "putting another in fear ." It requires an expressed or implied threat, communicated by gestures or words, of force upon another person . A frightfully aggressive appearance from which one might infer the use of such force does not satisfy the requirement of our statute . For the foregoing reasons, I respectfully dissent. Minton, C.J., joins .

COUNSEL FOR APPELLANT : Daniel T. Goyette Louisville Metro Public Defender Elizabeth B . McMahon Assistant Public Defender Office of the Louisville Metro Public Defender Advocacy Plaza 717-719 West Jefferson Street Louisville, KY 40202 COUNSEL FOR APPELLEE: Jack Conway Attorney General Jason Bradley Moore Assistant Attorney General Office of Criminal Appeals Attorney General's Office 1024 Capitol Center Drive Frankfort, KY 40601-8204

RENDERED : APRIL 21, 2011 TO BE PUBLISHED

,*UyrrMr

(~Vurf

of ~irufurhv

2010-SC-000331-MR

PRINCE WILBERT WOOLFOLK

APPELLANT

ON APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE THOMAS O . CASTLEN, JUDGE NO . 08-CR-00075

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING Appellant, Prince Wilbert Woolfolk, appeals as a matter of right, Ky. Const. § 110(2) (b), from a judgment entered upon a jury verdict by the Daviess Circuit Court convicting him of first-degree rape . Pursuant to the jury's recommendation, he was sentenced to twenty years' imprisonment . Appellant now raises three claims : (1) that the trial court erred by discouraging him from exercising his constitutional right to testify ; (2) that the trial court erred by failing to order a competency evaluation after he manifested symptoms of incompetency during the trial ; and (3) that there was a violation of his right to a speedy trial because of a twenty-four year lapse of time between the crime and the bringing of the indictment .

Upon review, we conclude that the trial court did not abuse its discretion in failing to order a competency evaluation during the trial; that no speedy trial violation occurred ; and though constitutional error occurred in the trial court's effort to discourage Appellant from testifying falsely, the error was harmless beyond a reasonable doubt. Accordingly, we affirm . I . FACTUAL AND PROCEDURAL BACKGROUND Viewed most favorably to the verdict, the relevant facts are as follows . In February 1984, A.C . was a seventeen-year-old high school girl, active in her church choir. Appellant, then fifty-one years old, was the pastor at A.C.'s church in Owensboro . On the date of the crime, A .C . learned from her mother that Appellant had called to say that he would pick her up from school and take her to the church, presumably for a church choir activity . In fact, there was no such activity at the church . Appellant picked up A .C . and took her to his office at the church, where, according to A.C ., he raped her. Confused by the fact that her mother had permitted the pastor to pick her up, A .C. went to stay with a confidante named Donna, instead of staying at home . Within a few days, fearing the rape may have impregnated her, A.C . used a coat hanger in a crude attempt to cause an abortion. As a result, she was hospitalized . Records of that hospitalization were admitted at trial . In the meantime, A .C.'s mother learned from Donna what had happened, and she confronted Appellant . Appellant denied that he raped A.C ., but admitted that he had rubbed his penis between her legs in an effort to "comfort" A .C. because "she seemed so neglected." At the family's

insistence, Appellant agreed to repent before the congregation, but he never did. A.C . and her family did not report the incident to the police because, according to their religious beliefs at the time, prosecuting a pastor in court was a sin.' Some twenty-three years later, A.C . attempted suicide. Believing that the rape may have played a part in the attempt, and that punishing Appellant for the crime may bring relief to her daughter, A .C.'s mother contacted the police about the 1984 incident . During the investigation, Appellant admitted to police that a sexual encounter with A. C. had occurred but he denied that he used force or that penetration occurred . Later, speaking to a local newspaper reporter, he admitted "There was no rape whatsoever . . . . It was a matter of putting a penis between her legs, that's as far as it got . . . . There wasn't any compulsory [sic], it was not against her will at all . . . . It wasn't appropriate, but it wasn't a sin or anything like that ." On February 4, 2008, Appellant was indicted for first-degree rape . The trial began on January 26, 2010, and concluded with a jury verdict finding Appellant guilty of first-degree rape and recommending a sentence of twenty years' imprisonment. Two of the issues presented in this appeal arose during a lunch break taken amidst A.C .'s trial testimony . Appellant and his trial counsel conferred during the break to discuss how best to cross-examine A.C . about her claim that Appellant had forcibly raped her . To counsel's surprise, and contrary to

1 "Touch not mine anointed, and do my prophets no harm." I Chronicles 16 :22, and Psalms 105 :15.

all prior statements Appellant had made on the subject, Appellant told him that he had used force against A .C., and that there had indeed been penetration . Appellant's statement raised trial counsel's concern about his ethical obligations in cross-examining A .C . about her claims regarding force and penetration, and his ethical obligations that might arise if Appellant took the stand in his own defense and denied that force and penetration occurred. Counsel immediately contacted the Kentucky Bar Association ethics hotline for advice, and requested an in camera conference with the trial court. When he attempted to speak further to Appellant about the sudden revision of his story, Appellant claimed that he did not remember making the statements . Thus, Appellant appeared to have manifested a sudden loss of memory. The trial court granted counsel's request for an ex pane, in camera conference . Counsel moved the court to order a competency examination of Appellant, and to delay further proceedings pending such an examination . The trial court denied both requests. Counsel for Appellant also cautiously informed the court of Appellant's surprising admission regarding .the questions of force and penetration . The trial judge advised Appellant of the possible consequences of giving inconsistent testimony should he decide to testify. Appellant now contends that the trial court improperly discouraged him from exercising his right to testify on his own behalf, and that the trial court erred in refusing to order a competency evaluation .

II . THE TRIAL COURT'S WARNING TO APPELLANT THAT HIS ANTICIPATED TESTIMONY MIGHT RESULT IN A PERJURY CHARGE WAS ERROR, BUT WAS HARMLESS BEYOND A REASONABLE DOUBT . Appellant argues that he was denied his right to testify on his own behalf by the manner in which the trial court attempted to dissuade him from giving false testimony . As noted above, during the trial, Appellant's counsel requested an ex parte conference with the court for the purpose of discussing how Appellant's mid-trial communication to counsel, which contradicted his previous statements, as well as Appellant's alleged lapse of memory, should affect the ongoing trial.2 In chambers, meeting first without Appellant, counsel informed the court of his concerns about Appellant's statement during the break. The trial court and counsel mutually acknowledged that, because Appellant had previously admitted to having sexual contact with A.C., the "heart of the dispute" was whether Appellant's penis had penetrated the victim and whether he used force against her, both being essential elements of the crime of rape as charged . Counsel and the trial court also appear to have concluded that Appellant's original story, in which he denied penetration and the use of force, was false and that Appellant's most recent statement, in which he apparently admitted penetration and the use of force, was true. With that premise underlying the discussion, Appellant was then brought into chambers, where the trial court told him, incorrectly, that if he

2

In Brown v. Commonwealth, 226 S .W .3d 74 (Ky . 2007), we discussed the required procedures when trial counsel in a criminal case suspects his client may intend to take the stand and testify falsely . In this case, the procedure outlined in Brown may have been closely, though not precisely followed . Appellant does not cite any deficiencies in that process as grounds for relief.

testified differently from what he told his attorney during the trial with respect to the issue of force and penetration, he would be committing "a serious felony," and that a "high possibility" existed the Commonwealth would prosecute him for perjury . He also told Appellant, "If you testify, [trial counsel] is not allowed to ask you questions nor is he allowed to refer to your testimony in closing argument ." The court explained to Appellant that it would be "in your best interest not to testify at all" if he was going to testify falsely . The court further pointed out to Appellant that inconsistencies in his trial testimony might offend the jury, in which case he "might not see the light of day," meaning that the jury would treat him more harshly if he testified falsely. Appellant's initial response was that he did not expect to testify because he wanted his lawyer to testify for him . When informed that his attorney could not testify for him, and asked if he wanted to testify for himself, Appellant answered, "If I have to, I hope not. Whatever is the best. I don't know." Appellant ultimately did not testify. While it is evident that the trial court and trial counsel were making an earnest effort to deal with a delicate situation, we are troubled because the trial court's warning to Appellant, that his anticipated testimony could result in a prosecution for perjury, was incorrect. KRS 523 .070 provides that "[n]o prosecution shall be brought under this chapter [Chapter 523-Perjury and Related Offenses] when the substance of the defendant's false statement is his denial of guilt in a previous criminal trial ." Commentary to the statute further states, "[t]he purpose of this provision is to prevent abusive retrials of the

original charge based on the defendant's denial of guilt . It does not grant immunity to prosecution for perjury committed by defendants during previous criminal trials . It permits prosecution for perjury on collateral or subsidiary issues, but not on the denial of Thus, assuming Appellant had chosen to testify and, as expected, maintained his original story that no force or penetration was involved, his testimony would have amounted to no more than a denial of two of the essential elements of forcible rape under KRS 510 .040, and thus would have equated to a denial of guilt. His testimony would not have been in relation to "collateral or subsidiary issues." KRS 523 .070 would bar a subsequent charge of perjury if, as expected, Appellant's testimony simply repeated his original denial of force and penetration. The trial court's advice to the contrary was error. The question then becomes whether this misinformation, coupled with the trial court's other remarks, amounted to improper coercion, depriving Appellant of his right to testify. 4 There is no doubt that a defendant's right to testify on his own behalf is a right firmly grounded in the Fifth, Sixth, and Fourteenth Amendments to the

3 For example, if a criminal defendant concocts an untruthful alibi (which would exceed merely .denying the charge) he would be subject to prosecution for perjury for his false testimony on this subsidiary matter . 4 At the Commonwealth's request, before the defense rested its case, the trial court again discussed with Appellant his decision not to testify. During the discussion, Appellant indicated to the trial court that he talked to his attorney about his decision not to testify; that his decision not to testify was intelligently, voluntarily and knowingly made ; and that his decision was not made as a result of coercion . Appellant's acknowledgement, however, was made under the mistaken belief, created by the trial court, that he would likely be prosecuted for perjury if he took the stand and proclaimed that there had been no force or penetration . It follows that Appellant's decision was burdened with that misinformation .

United States Constitution, reinforced by § 11 of the Kentucky Constitution, 5 and further assured by KRS 421 .225, which states that a criminal defendant "shall be allowed to testify in his own behalf[ .]" See Quarels v. Commonwealth, 142 S .W.3d 73, 78-79 (Ky. 2004) . In recognition of this right, it is improper to coerce a defendant into relinquishing his constitutional right to testify through threat of prosecution for perjury . In .Hillard v. Commonwealth, 158 S.W .3d 758, 766 (Ky. 2005), we observed that perjury warnings directed to a defense witness, when limited to mere information or advice about the possibility of a perjury charge, were not improper per se . But, reversal may be required if such warnings are so strongly cast that they amount to deliberate and badgering threats designed to quash significant testimony, or otherwise intimidate a witness to the extent of interfering with the witness's free and unhampered choice to testify . See Webb v. Texas, 409 U.S . 95 (1972) (holding that a trial judge's badgering of sole defense witness which included threatening him with prosecution for perjury causing him not to testify constituted reversible error) ; United States v. Blackwell, 694 F.2d 1325, 1334 (D .C. Cir. 1982) ("[W]arnings concerning the dangers of perjury cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify .") ; Davis v. Texas, 831 S .W.2d 426 (Tx . App . 1992) ; H .D . Warren, Annotation, Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than forperjury, 127 A.L.R. 1385

5 In pertinent part, § 11 of the Kentucky Constitution states, "In all criminal prosecutions the accused has the right to be heard by himself and counsel . . . . ..

(1940) ("Any statement by a trial court to a witness which is so severe as to put him or other witnesses present in fear of the consequences of testifying freely constitutes reversible error.") . While Webb, Blackwell, and Hillard concerned intimidating a defense witness, it follows that the same reasoning would apply with even greater force if it is the defendant who is being intimidated . See U.S. v. Davis, 974 F .2d 182, 187 (D .C . Cir. 1992) ("It seems only sensible . . . that . . . judicial behavior aimed at dissuading the defendant himself--not merely his witnesses--from testifying would surely offend his statutory and constitutional rights .") . We have no 'bright line test to define the point at which cautionary advice about perjury becomes an improper threat resulting in reversible error . Certainly, all of the attendant circumstances should be considered. Hillard should be read as requiring a substantial degree of intimidating circumstances before a simple "warning" against perjury will be viewed as a "badgering threat." Having viewed the record here, we agree that the tenor of the warning given by the judge was administered cautiously and judiciously . But, implicit in that calculus is the assumption that, on its face, the warning is valid advice-that a subsequent perjury charge is a distinct legal possibility . However, when the warning or threat of future prosecution for perjury is false, it cannot be construed as having any legitimate purpose . We find it difficult to conceive that the inaccurate warning, whether in good faith or otherwise, can have any useful effect except to dissuade a defendant from exercising his right to testify . Thus, we conclude that, despite the absence of other intimidating

factors, the trial court's inaccurate warning to a criminal defendant that a perjury charge is a likely consequence of his election to testify, when in fact it is not, is always error. Having determined that the trial court's warning to Appellant was error, we review further to determine if it is error that requires reversal . It is fundamental that "no error or defect in any ruling . . . or in anything done or omitted by the court . . . is ground for granting a new trial or for setting aside a verdict . . . unless it appears to the court that the denial of such relief would be inconsistent with substantial justice ." RCr 9 .24 . Moreover, we "must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties ." Id. "Virtually all errors, therefore, are subject to harmless error analysis ." Crossland v. Commonwealth, 291 S .W.3d 223, 231 (Ky. 2009) . The exception to this general principle is structural error,

that is, errors "which are, per se, reversible because they undermine the fundamental legitimacy of the judicial process ." Id. at 232 . "In such cases, the error `necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence .' Washington v. Recuenco, 548 U.S . 212, 219, 466 (2006) (citation and footnote omitted) .6

While the right to testify is unquestionably an important constitutional right, nevertheless, the erroneous denial of the right has been held not to be 6 Among those types of errors which have been found to be structural are: Sullivan v. Louisiana, 508 U .S. 275 (1993) (defective reasonable-doubt instruction) ; Vasquez v. Hillery, 474 U .S . 254 (1986) (racial discrimination in selection of grand jury) ; Waller v. Georgia, 467 U.S . 39 (1984) (denial of public trial) ; McKaskle v. Wiggins, 465 U .S. 168 (1984) (denial of self-representation at trial) ; Gideon v . Wainwright, 372 U.S . 335 (1963) (complete denial of counsel) ; Tumey v. Ohio, 273 U.S . 510 (1927) (biased trial judge) ; See also Payne v. Arkansas, 356 U .S. 560 (1958) (coerced confession) .

structural error . For example, although under differing factual circumstances, harmless error review under the constitutional standard has been applied to denial of the right in the following cases : Martinez v. Ylst, 951 F .2d 1153, 1157 (9th Cir. 1991) (Applying constitutional harmless error analysis to denial of right to testify but noting "it is only the most extraordinary of trials in which a denial of the defendant's right to testify can be said to be harmless beyond a reasonable doubt ."); Ortega v. O'Leary, 843 F.2d 258, 260-63 (7th Cir. 1988) (applying constitutional harmless error review to denial of defendant's right to testify) ; Alicea v. Gagnon, 675 F .2d 913, 925 (7th Cir. 1982) (per curiam) (harmless error found where defendant was precluded from giving alibi testimony due to violation of Wisconsin notice of alibi statute) ; Wright v. Estelle, 572 F .2d 1071 (5th Cir. 1978) (en banc) (Even if defendant had been deprived of claimed personal constitutional right to testify on his own behalf when his attorney refused to let him testify in homicide prosecution, any error was harmless beyond reasonable doubt, since defendant's testimony would not have altered verdict based on evidence which overwhelmingly connected defendant to the crime .) ; Agosto v. State, 288 S .W.3d 113 (Tx. App . 2009) (The right to testify is "fundamental" in the sense that the defendant possesses the ultimate authority on whether to invoke the right, however the denial of the right to testify is a trial error, rather than a structural error, which is subject to a harm analysis.) As a point of clarification, we add the result may be different if (unlike here) it is the government that induces the denial of testimony thorough improper conduct . See, eg. U.S. v. Morrison, 535 F.2d 223, 228

(C .A.Pa. 1976) (Where the government has prevented the defendant's witness from testifying freely before the jury, it cannot be held that the jury would not have believed the testimony or that the error is harmless) . We recognize the great importance of a defendant's right to testify on his own behalf. "In fact, the most important witness for the defense in many criminal cases is the defendant himself . . . . A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness ." Rock v. Arkansas, 483 U .S . 44, 52 (1987) . However, in the absence of pertinent authority that denial of a criminal defendant's right to testify is structural error, we will follow the general principle as stated above, and treat such denial as subject to harmless error analysis . Nevertheless, as discussed, the error is of constitutional significance . While constitutional error is subject to the harmless error analysis, review is under the heightened standard as stated in Chapman v. California, 386 U .S . 18, 24(1967) . "That test . . . is whether it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'

d.;

see also Winstead v. Commonwealth, 283 S.W .3d 678, 689 n . 1 (Ky . 2009) . Our analysis begins with the observation that, unlike the witnesses in Webb, Blackwell, and Hillard, it is not claimed that Appellant would have testified but for the erroneous perjury warning from the judge . Appellant has never claimed that he had decided to testify at his trial or that the trial judge talked him out of testifying. His conversation with the Court arose early in the

trial, well before such a decision was required. At that time, Appellant expressed a preference not to testify unless he had to. He argues only that the trial court should have more fully "explored" with him the option and consequences of testifying. In this context, the question for harmless error analysis becomes, not whether the absence of Appellant's testimony "contributed to the verdict obtained" or whether his testimony may have changed the outcome of the trial .? Rather, the question is whether, absent the trial court's erroneous advice, Appellant would have chosen to exercise his right to testify on his own behalf. If, beyond a reasonable doubt, the misleading information did not cause Appellant's decision not to testify, then it did not contribute to the verdict, and was therefore harmless under the standard of review for constitutional error. We first consider the factors raising doubt that the error was harmless . A.C. presented emotional testimony concerning the 1984 events, alleging both force and penetration . Evidence concerning her naive abortion attempt a few days after the incident, and the resulting medical treatment that tended to corroborate her version of events, arguably lend sympathy to her cause. Those factors would have, for Appellant and his trial counsel, weighed in favor of testifying to rebut her claim. Furthermore, based upon our viewing of the trial proceedings, Appellant presents himself as distinguished and well-spoken . As a long-time pastor, presumably he is a polished and capable public speaker, 7 Appellant has provided us with no indication of what he would have said had he elected to testify . We can only presume that his testimony would have been consistent with his pre-trial statement to the newspaper reporter and to the police . Therefore, we cannot determine, and we need not determine, if such testimony would have changed the verdict .

with a corresponding ability to communicate well . For these reasons, as a general matter, it appears he may have made a good impression from the witness stand. This would be of particular importance in this case, because upon the issues of force and penetration, it is ultimately a he-said-she-said case . On the other hand, through his prior statements to the newspaper reporter and to the police, the jury heard Appellant's denial of the rape charge, and his trial counsel emphasized that point in the closing argument . By declining to testify, Appellant's trial counsel was able to exploit the weaknesses in the prosecution's case$ without exposing Appellant to what, in all likelihood, would have been a very aggressive cross-.examination . Undoubtedly, crossexamination would have underscored a sordid version of events forcing him to repeat how a fifty-one year old pastor, under false pretenses, picked up a seventeen-year old female parishioner from school, took her to his church office, and persuaded her into a willing sexual encounter in which he placed his penis between her legs but did not penetrate her. As so described, and while the jury was otherwise made aware of this version of events, an immediate impression registers that Appellant's own testimony to this effect could be so inflammatory as to overshadow his denial of force and penetration ; indeed, a juror could reasonably view this as a shocking betrayal of the pastorparishioner relationship between a married pastor and a minor parishioner and 8 These weaknesses included the fact that the crime itself was twenty-six years in the past at the time of the trial, that it was not reported to police for more than two decades, that A .C. was suffering from emotional problems when the alleged rape was reported to police, that very little physical evidence existed to corroborate A .C.'s claim, and that A.C. had consulted an attorney about suing the church .

a transgression as offensive as the criminal charge itself . Moreover, if Appellant's testimony under cross-examination strayed too far beyond the confines of his prior admissions, he could easily expose himself to proper perjury charges, thus validating the trial court's earlier admonition. We have also noted that in his opening statements to the jury, defense counsel for Appellant did not indicate that Appellant would testify and during his voir dire examination of the jury, he reminded them that a decision not to testify could not be held against a criminal defendant . Given the entirety of the circumstances as outlined above, we believe it is highly improbable that competent defense counsel would have advised his client to testify, and correspondingly, highly improbable that a well-advised defendant would have elected to present Appellant's testimony . We are also influenced, as noted above, by the absence of any claim, even now, that Appellant was dissuaded from taking the stand because of the judge's comments . It is within this context that we conclude beyond a reasonable doubt that the trial court's inaccurate advice to Appellant did not induce his decision not to testify or otherwise contribute to the verdict obtained . We do not find that the trial court's erroneous perjury warning provides a basis for reversal of his conviction . III . APPELLANT WAS NOT ENTITLED TO A COMPETENCY EVALUATION Appellant next contends that the trial court erred by failing to continue the trial and order a competency evaluation and hearing after he manifested symptoms of incompetency midway through the trial. Instead, the trial court

proceeded with the trial . Appellant's claim that he was entitled to a competency evaluation is based upon the manifestation of sudden memory loss that occurred when he was unable to recall the significant admission he had made to trial counsel only moments before . Appellant also told trial counsel, for the first time, that there was a history of dementia in his family, and that his doctor told him that he was suffering early symptoms of the disease. Based upon these developments, trial counsel raised concern that Appellant may be incompetent to be tried. Trial counsel related these events during the in camera meeting with the trial court, stating that his client was suffering from a lack of memory, was disoriented, and may be suffering the onset of dementia. Trial counsel told the court that he did not believe his client was trying to be manipulative, but rather actually seemed to have forgotten part of what they had just discussed. Appellant was then brought into chambers for the discussion with the trial court as described in the preceding section of this opinion . After concluding the discussion relevant to Appellant's decision to testify, the trial court brought the prosecutor into chambers for discussion of the competency issue . The Commonwealth objected to Appellant's motion for a continuance pending a competency examination. The Commonwealth argued that there had been a previous continuance, that no prior concerns relating to Appellant's competency had been raised,, and that Appellant was engaging in a ploy to delay the proceedings based upon A .C .'s emotional testimony that

morning . In denying Appellant's motion for a continuance for a competency evaluation, the trial court noted that many defendants exhibit confusion around the time of trial as a result of stress and fear. The trial court stated that those defendants understand the proceedings, but do not want to confront the consequences of their acts . The court found that because Appellant had actively participated in his defense and that this was the first time the issue of competency was raised, he had not met the standard to continue the trial for a competency evaluation . KRS 504 .100(1) provides as follows: "If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition ." In addition, the United States Constitution, as a matter of due process, bars trying a defendant who is incompetent to stand trial. Drope v. Missouri, 420 U .S . 162 (1975) . In Godinez v. Moran, 509 U.S. 389, 396 (1993), the United States Supreme Court held that a defendant is competent if he can "consult with his lawyer with a reasonable degree of rational understanding" and has "a rational as well as factual understanding of the proceedings against him ." The Court noted that a competent defendant is one who is able to make a "reasoned choice" among the alternatives available to him when confronted with such crucial questions as whether he should testify, waive his right to a jury trial,

cross-examine witnesses, or put on a defense . Id. at 397-398; Bishop v. Caudill, 118 S .W .3d 159, 162-163 (Ky. 2003) . "Evidence of a defendant's irrational behavior, his demeanor in court, and any prior medical opinion on competence to stand trial are all relevant facts for a court to consider" in reaching its decision . Mills v. Commonwealth, 996 S.W .2d 473, 486 (Ky. 1999) . As further explained by Professors Fortune and Lawson in Kentucky Criminal Law, § 5-4(b) (Lexis 1998) : The focus in these determinations is on the defendant's mental condition at the time of the proceeding (not at the time of the criminal act) . The following statement describes the nature of the inquiry: `Under this test, there are two distinct matters to be determined : (1) whether the defendant is sufficiently coherent to provide his counsel with information necessary or relevant to constructing a defense; and (2) whether he is able to comprehend the significance of the trial and his relation to it . The defendant must have an `ability to confer intelligently, to testify coherently, and to follow the evidence presented .' It is necessary that the defendant have a rational as well as a factual understanding of the proceedings .' Would defendant recognize false testimony by a witness and would he know to advise counsel of that fact? Does he understand the roles of trial participants (i.e . that the prosecutor is his adversary, that the judge decides his fate, that his counsel acts in his best interest, etc.)? Does he understand that convictions will result in sanctions? The inquiry is a factual one that necessarily depends upon the peculiar facts and circumstances of the case. See Bishop, 118 S.W . 3d at 163 . We recently discussed the scope of a defendant's entitlement to a competency hearing in Padgett v. Commonwealth, 312 S .W.3d 336 (Ky. 2010),

wherein we noted that, when analyzing whether a defendant is competent to stand trial, two separate interests -- a statutory right under KRS 504 .100(1) and a constitutional right under the Fourteenth Amendment of the United States Constitution -- are at stake . More importantly, we noted in Padgett that different standards govern those interests . Due process under the Fourteenth Amendment requires that where substantial evidence that a defendant is not competent exists, the trial court is required to conduct an evidentiary hearing on the defendant's competence to stand trial . Id. at 347 . In contrast, under KRS 504 . 100, "reasonable grounds to believe the defendant is incompetent to stand trial" mandates a competency examination, followed by a competency hearing . Padgett, 312 S .W.3d at 344 . Thus, while the failure to conduct a competency hearing implicates constitutional protections only when "substantial evidence" of incompetence exists, mere "reasonable grounds" to believe the defendant is incompetent implicates the statutory right to an examination and hearing . Id. The standard of appellate review of a trial court's competency decision is "[w]hether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial." Turner v. Commonwealth, 153 S .W.3d 823, 832 (Ky . 2005) (quoting Thompson v. Commonwealth, 56 S .W.3d 406, 408 (Ky. 2001)) . It is within the trial court's sound discretion to determine whether "reasonable grounds" exist to question competency, though once such grounds do exist, a competency hearing is

mandatory . Gray v. Commonwealth, 233 S .W.3d 715, 718 (Ky. 2007) . Upon review, we conclude that the trial court did not abuse its discretion in denying Appellant's motion for a competency evaluation. Appellant was originally indicted in February 2008, and from then until the commencement of the trial almost two years later, there were no allegations or indications that he was incompetent to stand trial. Nor did Appellant raise his family's alleged history of dementia or his alleged diagnosis of onset of the disease. The trial then commenced, again without any indication of Appellant's incompetency . Only after A.C . presented her emotional testimony describing the February 1984 event did the issue of incompetency arise . At that juncture, it fell to the trial court to evaluate the possible explanations for Appellant's apparent sudden manifestations of disorientation and memory loss: (1) malingering; (2) a temporary reaction brought about by the shock of the victim's testimony ; or (3) a genuine onset of potential incompetency . As is usually the case, the trial court was in the best position to observe Appellant's conduct and demeanor from the outset of the proceedings, and to evaluate the circumstances, including Appellant's demeanor and deportment, occurring during the course of the trial . Therefore, its evaluation of the significance of Appellant's manifestation of disorientation and memory loss is entitled to substantial deference . In the trial court's estimation, Appellant's symptoms of disorientation and memory loss were due to the emotional testimony of the victim accusing him, her former pastor, of forcibly raping her.

This conclusion was well within the bounds of reasonableness . As such; in consideration of the trial court's superior position to evaluate whether there were reasonable grounds to believe that Appellant was competent, and because its conclusion is, under the totality of circumstances, a reasonable conclusion, we conclude that the trial court did not abuse its discretion in denying Appellant's motion for a continuance and competency evaluation . IV . NO SPEEDY TRIAL VIOLATION OCCURRED Appellant's final argument is that he was entitled to dismissal of the charges on the basis of a violation of his constitutional right to a speedy trial . Significantly, Appellant's argument is premised entirely upon the delay between the February 1984 incident and the 2008 indictment. He makes no argument relating to the time lapse between his indictment and commencement of trial . We accordingly will limit our review to the pre-indictment delay in bringing the charges. There is no statute of limitations for prosecution of a felony offense in Kentucky . KRS 500.050(1) ; Reed v. Commonwealth, 738 S.W .2d 818, 820 (Ky. 1987) . Nor is the constitutional right to a speedy trial implicated in this case, U .S. Const . Amend . VI, Ky . Const . § 11, because Appellant was not under indictment during the period from February 1984 to February 2008 . Kirk v. Commonwealth, 6 S.W.3d 823, 826 (Ky. 1999) . Prior to indictment, the speedy trial guarantee is not applicable because "with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending ." Id. Nevertheless, unjustified and prejudicial pre-

indictment delay may constitute a violation of due process and require dismissal . Prejudice alone, however, will not suffice . "[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused . Thus, dismissal is required only where there is both substantial prejudice and an intentional delay to gain tactical advantage ." Id. (citations and quotation marks omitted) . Appellant argues that he was prejudiced by the delay prior to his indictment because by the time this matter was prosecuted, hospital and school records that could have assisted the defendant and disprove the allegations of the prosecuting witness were lost or destroyed . He maintains that there "is not any way to calculate how the defendant would have been assisted by timely prosecution including but not limited to the gathering of witnesses and documents ." While Appellant's allegation of prejudice is clearly speculative, nevertheless even if it is assumed that substantial prejudice resulted from the twenty-four year delay, Appellant does not allege, and there is no evidence, that the Commonwealth intentionally delayed the prosecution in order to gain a tactical advantage . It is undisputed that the Commonwealth did not learn of the incident until over two decades after the fact, and then timely investigated the case. There being no intentional delay by the Commonwealth in order to gain a tactical advantage, it follows that there was no violation of Appellant's due process rights as a result of the pre-indictment delay.

V. CONCLUSION For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed. Minton, C .J ., Abramson, Cunningham, Schroder and Venters, JJ ., concur . Noble, J ., dissents by separate opinion, in which Scott, J., joins . NOBLE, J ., DISSENTING : The majority holds that improperly dissuading Appellant from testifying in his own criminal defense-effecting a deprivation of his constitutional right-is harmless because, in the majority's opinion, Appellant would not have testified anyway. After careful review of the tape of the hearing, I find that an appellate court can only speculate about the harmlessness of the misadvice . Before Appellant was asked on the record if he planned to take the stand, he was told that he would be subject to a perjury charge, and it was at least implied that the charge would be forthcoming if he testified any differently than what he allegedly told his attorney that day.

The

record does not make clear exactly what he was supposed to have said, but contextually, we can assume it was an admission of force to his counsel. However, Appellant professed no memory of saying any such thing to his attorney, and given the vagueness of the attorney's comments, it is impossible to know what the attorney heard, versus what he thought he heard . Also, it is apparently true that up to that point in the judge's chambers, the Appellant was asserting his right to testify. At least that is what the attorney told the judge, when he explained why he asked for the ex parte hearing . So Appellant did state his desire to take the stand, and only denied

any desire to do so after he had been told that he would likely be prosecuted for perjury if he testified . It is beyond serious question that the misadvice influenced him to forgo his right to testify in his own defense . But the relevant question is whether this undue influence caused him any prejudice . There is no doubt the trial court was well intentioned, and it is easy to see the mistake when the advice would be true regarding any other witness . Nonetheless, I am convinced that this error was prejudicial here, almost in a de facto way. In finding that a reasonable person in Appellant's shoes would not testify, it resorts to speculation that no jury would believe Appellant because he admitted to engaging in certain types of purportedly "immoral" sexual behavior, despite the fact that such behavior is perfectly legal in this Commonwealth . The only burden of proof on this matter rests with the Commonwealth, and that burden was impermissibly lightened when the Appellant was dissuaded from testifying in his own behalf. The majority correctly recognizes that a deprivation of one's right to testify is a constitutional error, but not a structural one, which is reviewable under the harmless error rule. This approach is consistent with this Court's treatment of the deprivation of one's right to testify in Quarels v. Commonwealth, 142 S.W .3d 73 (Ky. 2004) . "[D]enial of a defendant's right to testify on his or her own behalf is a constitutional 'trial-type' error that is amenable to the harmless error analysis espoused in Chapman." Id. at 82 . Thus, the error in this case is subject to review for harmlessness, but only

under the heightened standard applicable to constitutional errors laid out in Chapman v. California, 386 U .S . 18 (1967) . Under the heightened standard, constitutional error can be deemed harmless only where it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 24 . The majority finds such harmlessness by concluding beyond a reasonable doubt, that Appellant would not have testified even without any misinformation from the bench . The facts don't support such a conclusion. To prove beyond a reasonable doubt that a defendant was not going to testify in the first place is quite a steep burden indeed . The majority's direct evidence that Appellant would not have testified anyway is, primarily, that he never said he was going to . It is true that he does not say so on the record, but apparently he had been planning to testify : . his attorney said he did and used that as the basis for obtaining the ex parte hearing with the judge . It is immaterial that his opening statement did not hint that he would testify or that his attorney questioned the jurors about whether they could be fair if he did not testify. This occurs in practically every criminal trial . Regardless, Appellant does not have to prove he was going to testify; the Commonwealth has to prove he was not. A defendant is not required to affirmatively assert his right to testify, as one is encouraged to do under the Speedy Trial Clause, for example . Thus, nothing can be inferred from any silence by Appellant on his plan to testify or not. The majority points out that Appellant was not in fact entirely silent as to

his plans to testify . The majority states, "Appellant expressed a preference not to testify unless he had to ." This declaration by Appellant might carry some weight, if it had not come immediately after the improper perjury threat underlying this entire issue . Due to this sequencing, Appellant's comment does nothing to support the Commonwealth and the majority's claim that he wasn't going to testify prior to the misinformation about perjury. On the contrary, given that Appellant's announcement appears to have come as a surprise to his counsel who joined him in chambers, it indicates that the court's immediately prior warning of perjury is exactly what changed his mind into not testifying . If anything, this episode demonstrates that the error was harmful, not harmless . The majority concedes that there is much to indicate that Appellant would actually have been a credible witness : [B]ased upon our viewing of the proceedings, Appellant presents himself as distinguished and well-spoken . And as a long-time pastor, presumably he is a polished and capable public speaker, with a corresponding ability to communicate well. For these reasons, as a general matter, it appears he may have made a good impression from the witness stand. Notwithstanding the majority's favorable impression of Appellant's general demeanor and background, it views one fact as the ultimate trump to his credibility : that he admits to sexual relations, albeit consensual, at the age of 51 with a then sixteen-year-old A.C . In the majority's opinion, Appellant's admission of such a consensual act with a sixteen-year-old "would be so damaging to his character, and so inflammatory, so as to overshadow his

denial of force and penetration." I do agree with the majority there are some acts that are so repulsive to society at large that they may inherently reflect negatively on a person's character, so as to undermine his credibility on the stand. However, it is not the place of this Court to overstep the bounds of the legislature-that body elected to make laws governing behavior in this Commonwealth-to announce our own flavor of morality. "Our Legislature has a broad discretion to determine for itself what is harmful to . . . morals" and we should "try to refrain from usurping its prerogative ." Walters v. Bindner, 435 S .W.2d 464, 467 (Ky. 1968) . Laws "represent[] the collective expression of moral aspirations ."

Zablocki v. Redhail, 434 U.S . 374, 399 (1978) . Thus, they provide the only legitimate insight into what behavior the public, including members of a jury, would likely consider immoral and consequently, detract from a witness's credibility through our penal code . The fact that the conduct at issue is not illegal if consensual highlights how important it is for a defendant to have the ability to state his version of events . If the Appellant is not entitled to this, then in the next he-said-she-said trial, why not just give the case to the jury after the Commonwealth closes? That is essentially what happened here . I cannot differentiate between this defendant and the next criminal case with a similar situation . The question is not whether a reasonable juror could have disbelieved Appellant-due to his admitted conduct or any other reason . Instead, the question is whether this Court can be sure beyond a reasonable doubt that a

juror would have disbelieved Appellant . See Chapman, 386 U .S . at 24 . Especially given that the character flaw alleged by the majority encompasses completely legal behavior, a reasonable juror could recognize such behavior as reprehensible, but not illegal, and accept Appellant's story. In fact, Kentucky law has always recognized, in an integrally linked context, that only those past behaviors that are criminal should undermine a witness's credibility . That context is evidence law, which permits impeachment of a witness's character only through evidence of prior criminal acts and, even then, only where those crimes are felonies . See KRE 609 . A witness may also be cross-examined on non-criminal acts, but only those acts directly "concerning the witness' character for truthfulness or untruthfulness ." KRE 608(b) . A consensual sexual act with a sixteen-year-old does not qualify under either category. It is not criminal, as discussed above . Nor does it directly pertain to character for truthfulness or untruthfulness . Even "sexual misconduct involving minors is not probative of untruthfulness because it does not necessarily involve dishonesty or false statements." United States v. Quiles, Crim . A . No . 07-391-01, 2009 WL 466283, 2009 U.S . Dist . LEXIS 18995 (E .D . Pa . Feb . 24, 2009), affd, 618 F.3d 383 (3d Cir. 2010) (emphasis added) ; Knox v. City of Monroe, CIV. A. 07-606, 2009 WL 936965, 2009 U .S . Dist . LEXIS 29454 (W.D. La. Apr . 6, 2009) (same) . These rules of evidence serve to prevent a jury from using past sexual conduct-or misconduct-to evaluate a witness's credibility . This bar reflects a

determination in the law that such conduct has no legally cognizable bearing on a witness's truthfulness . Not only would it be reasonable for the jury to disregard consensual relations between Appellant and A .C . in evaluating his truthfulness, it would be mandatory for the jury to ignore them . I do not doubt the majority's intention to adhere to sound legal principles in assessing Appellant's credibility in looking at the question of harmlessness. This should have been a prototypical he-said-she-said case, with the jury free to choose either side or, alternatively, to believe neither beyond a reasonable doubt and hence acquit . Instead, there was no "he said," because the defendant was improperly pressured into not testifying . Thus, the jury was left only with what "she said" and, to no surprise, believed such uncontradicted testimony . I cannot deem this harmless. Scott, J ., joins . COUNSEL FOR APPELLANT : Steven B . Strepey 414 Ky. Home Life Building 239 South Fifth Street Louisville, Kentucky 40202 COUNSEL FOR APPELLEE: Jack Conway Attorney General Michael John Marsch Assistant Attorney General Office Of Criminal Appeals Attorney General's Office 1024 Capital Center Drive Frankfort, Kentucky 40601

RENDERED : APRIL 21, 2011 TO BE PUBLISHED

,*UFrrMr (Q-10urf

of

rnfurhv

2009-SC-000244-MR

DOUGLAS WAYNE HALL

V

APPELLANT

ON APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 06-CR-00158-002

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN-PART Douglas Hall appeals as a matter of right' from a judgment convicting him of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery and sentencing him to an aggregate term of forty-five years' imprisonment . He raises several issues on appeal . Rejecting Hall's argument for a strict same-elements test for determining the appropriateness of instructing on lesser-included offenses, we approve the

Ky. Const. § 110(2)(b) .

trial court's reliance on Perry v. Commonwealth2 as authority for instructing the jury on first-degree assault as a lesser-included offense of attempted murder under the evidence presented in this case . But we reverse Hall's first-degree assault conviction because the trial court failed to instruct the jury on facilitation to assault, which the evidence also warranted . We affirm the remaining convictions and sentences imposed, and we remand for further proceedings in conformity with this opinion . 1 . FACTS. This case arises out of a drug-related home burglary and robbery that ended in the violent death of one victim and the serious injury of another victim. Hall admits that he - along with others - planned the burglary and robbery to obtain money from one of the victims, but he contends that he did not intend for the victims to be killed or injured . Hall admits to being guilty of some involvement in robbing the victims; but he asserts that circumstances spiraled out of his control, resulting in unintended consequences for which he received -- in his view -- excessive convictions and punishment .3 Contending that various errors occurred from the indictment stage through the penalty phase of trial, Hall argues that his convictions should be reversed and his case remanded for a new trial.

2 3

839 S.W.2d 268 (Ky. 1992) . According to Hall's brief, his "defense was that his downward spiral from drug addiction led to his planning a robbery that went horribly wrong." 2

Hall and others - including Tony Hodge4 - planned to rob Faye Jackson, knowing that she kept thousands of dollars on hand to pay for illegal drugs . Hall testified at trial to seeing Hodge with a gun before Hodge entered Jackson's home to rob her . At trial, Hall denied he gave Hodge the gun ; but others testified Hall furnished the gun. Hodge entered Jackson's home and immediately opened fire on the victims, Jackson and her boyfriend, Mitchell Turner . Hodge then stabbed both victims and left when he thought both victims were dead . Jackson died. Turner survived. Hall was not directly involved in the shooting or stabbing. But he drove Hodge to Jackson's home and waited outside while Hodge went inside . According to their plan, Hodge agreed to signal Hall when it was time to enter Jackson's home and take Jackson's money. Hall, unlike Hodge, knew where Jackson kept her money from his previous trips to her house selling drugs. Although he claimed to be shocked by the sound of gunshots, Hall admitted to entering the home upon Hodge's signal and taking the money from Jackson's purse. Hall claimed he tried to. leave after seeing Jackson wounded . According to Hall, he remained in the Jackson home and further participated because Hodge threatened to kill him if he left.

4

According to Hall's brief, Hodge was indicted for the intentional murder of Margaret "Faye" Jackson, the intentional attempted murder of Mitchell Turner, first-degree robbery, and first-degree burglary and pleaded guilty to all offenses in order to obtain a life sentence . The Commonwealth had sought the death penalty for both Hodge and Hall.

Hall claims he was shaken by the incident ; and he confided in his cousin, Travis Dixon, and in an acquaintance, Tim Shelton . Ultimately, it was Shelton who told police, resulting in Hall and others becoming suspects. Dixon and Shelton testified at trial to what Hall allegedly confided to them. There were significant inconsistencies among the various accounts, including a dispute in the testimony about whether Hall provided Hodge with the gun and whether Dixon or Hall threatened Shelton if he told police . Hall was indicted for the wanton murder of Jackson, the attempted wanton murder of Turner, first-degree burglary, and first-degree robbery . Following the presentation of evidence at trial, the trial court instructed the jury on the charged offenses . Over Hall's objection, the trial court also instructed the jury on first-degree assault as a lesser-included offense of attempted murder and denied Hall's requests for instructions on facilitation to assault, first-degree robbery, and first-degree burglary. At one point during deliberations, the jury informed the trial court that it was deadlocked . After the trial court gave the jury an Allen charges and allowed the jury to review portions of a joint interview of Hall and Dixon by police, the jury eventually reached a verdict . The jury did not find Hall guilty of murder or of attempted murder . But it did find him guilty of second-degree manslaughter of Jackson, first-degree assault of Turner, first-degree robbery, and first-degree burglary.

See Allen v. United States, 164 U .S . 492, 501 (1896) . 4

The jury recommended Hall be sentenced to ten years' imprisonment for second-degree manslaughter, twenty years' imprisonment for first-degree assault, fifteen years' imprisonment for first-degree robbery, and fifteen years' imprisonment for first-degree burglary . The jury further recommended the two fifteen-year sentences for robbery and burglary be served concurrently. Finally, the jury recommended the ten-year and twenty-year sentences for manslaughter and assault be served consecutively. The total sentence was forty-five years' imprisonment . The trial court entered judgment in accordance with the jury's verdict and sentencing recommendation . II . ANALYSIS. A. Indictment Charging Attempted Wanton Murder was Harmless Error. Hall contends he is entitled to relief because he was indicted for a crime that does not exist - attempted wanton murder - even though he was not convicted of that crime . We agree with Hall that a criminal charge requiring proof of attempting to achieve an unintended result is illogical, 6 but we do not

6

See Holland v. Commonwealth, 114 S .W.3d 792, 795 n.2 (Ky. 2003) (in case in which defendant was alternatively charged with attempted intentional murder and attempted wanton murder ; but trial court only instructed the jury on attempted intentional murder, holding that trial court properly ruled that attempted wanton murder is not an offense because "there is no such criminal offense as an attempt to achieve an unintended result .") . See also Prince v. Commonwealth, 987 S .W.2d 324, 326 (Ky .App. 1997) (trial court properly denied request for instruction on attempted first-degree manslaughter as lesser-included offense of charged crime of attempted murder where there was no allegation of extreme emotional disturbance because this "would require an intention to commit an unintentional act.") .

believe he is entitled to relief under the facts of this case . Our belief is fortified by the fact Hall failed to raise this issue in the trial court.? Clearly, a conviction for a non-existent crime cannot stand.$ But there appears to be little or no authority concerning whether a defendant who fails to object to an indictment charging an illogical or non-existent crime is entitled to relief when the defendant is not convicted of that charge. Cases from other jurisdictions note that so long as certain indictment defects (such as citations to non-existent statutes or typographical errors), which essentially result in charging a non-existent offense, do not actually mislead or prejudice a defendant, the defendant is not entitled to relief.9 In the case before us, even though attempted murder is a recognized offense under Kentucky law, we recognize an indictment charging that a defendant attempted to commit an unintentional murder can be described as illogical at best . Nonetheless, even though the offense of attempted wanton murder is illogical - if not totally non-existent --- we do not see how Hall was misled by the indictment . For example, he was free to argue he could not attempt to As noted by the Commonwealth, Kentucky law holds that a defendant waives defects in the indictment if he fails to present the issue to the trial court with certain exceptions, including that the indictment fails to charge an offense . See Kentucky Rules of Criminal Procedure (RCr) 8 .18 . 8

United States v. Castano, 543 F .3d 826, 836 (6th Cir. 2008) (holding that conviction must be reversed because erroneous jury instructions created possibility that defendant was convicted of non-existent offense) .

9

See, e.g., United States v. Chatham, 677 F.2d 800, 803 (11th Cir . 1982) (indictment charging defendant with offense by citing to superseded statute harmless error unless defendant misled or otherwise prejudiced) ; State v. Carter, 981 So.2d 734, 740-41 (La.App . 2008) (indictment charging defendant with offense under erroneous statutory cite did not entitle him to relief where he was not misled to his prejudice.) .

reach an unintentional result; and he does not now contend he was misled from being able to do so. And given the fact he was acquitted of this illogical charge and does not specifically allege how he was hampered in trying to defend himself because of this illogical charge, we do not believe he is entitled to reversal of his convictions for other offenses . The error does not arise to the level of palpable error .lo B . No Error in Trial Court's Denying Request to Play Entire Joint Interview of Hall and Dixon Due to Hearsay Concerns . Hall contends the trial court erred by not allowing him to play the entire recorded joint interview police conducted of him and his cousin, Travis Dixon . I' Police conducted the joint interview after both Hall and Dixon became suspects and gave inconsistent statements to police . Dixon's testimony concerned such matters as whether both Dixon and Hall were involved in selling drugs for Hall's Uncle Harold and Dixon's loaning money to Hall, allegedly giving rise to Hall's need to rob Jackson to pay Dixon . Hall apparently confessed his involvement in the robbery to Dixon, and Dixon believed that Hall provided to Hodge the gun used in the robbery . Overall, Dixon's testimony portrayed Hall in an unfavorable light, according to Hall . The Commonwealth elected to play separate interviews of Hall and Dixon and asserts it declined to play the joint interview because of poor audio quality io Kentucky Rules of Criminal Procedure (RCr) 10.26. Although we find no error in the trial court's denial of Hall's request to play the entire joint interview, we acknowledge that the jury may have found the portions of the joint interview played at trial to be significant . After informing the trial court it was deadlocked at one point, the jury reached its verdict after being given an Allen charge and reviewing portions of the joint interview. 7

concerns . And from our examination of the record, the trial court allowed Hall to play portions of the joint interview to the jury and eventually even agreed to allow Hall to play the whole interview with the exception of a portion of the interview in which Hall and Dixon repeated what Hodge said, which is presumably excludable hearsay . 12 Hall does not specify what, if any, hearsay exception 13 might apply to the excluded portion of the interview. Hall argues that he wanted to play the entire joint interview for the jury in order to show that Dixon was the manipulator rather than Hall . But the jury was not directly charged with deciding whether Hall, Dixon, or anyone else was a manipulator. The jury's duty lay in determining whether Hall was or was not guilty of the charged offenses, none of which had as an element that the defendant was manipulative . So the question of who was the manipulator was of limited actual relevance . 14 Given the limited relevance of Hall's asserted reason for playing the entire interview and the fact that Hall was allowed to play all non-hearsay portions of the joint interview and to cross-examine Dixon based on such portions, we find no abuse of discretion15 in the trial court's denial of his

12

See generally Kentucky Rules of Evidence (KRE) 801, 802 .

13

See generally KRE 803, 804 .

14

See KRE 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action

15

more probable or less probable than it would be without the evidence .") . See generally Ten Broeck DuPont, Inc. v. Brooks, 283 S .W.3d 705, 720 (Ky. 2009) (trial court's decision to admit or exclude evidence is subject to abuse of discretion standard of review).

request to play the entire joint interview. 16 And we do not believe the trial court's adherence to the rules of evidence, which disallowed the presentation of hearsay testimony about which no hearsay exception was ever asserted, deprived Hall of an opportunity fully to present his defense . 17 C. Prosecutor's Asking Hall Whether Other Witnesses Were Lying Did Not Amount to Palpable Error or Egregious Prosecutorial Misconduct Warranting Reversal. On several occasions after pointing out the conflicting accounts from Hall and other witnesses, the prosecutor asked Hall whether the other witnesses were lying . Hall failed to object to these questions so this issue is unpreserved for our review. 18 Specifically, these questions put to Hall by the prosecutor about other witnesses lying arose in two main instances . The first instance happened when Hall testified that Dixon sold drugs for Harold Hall, which was contrary to Dixon's testimonial denial of selling drugs . The second instance happened when the prosecutor asked Hall about a trip Hall made to Texas with Shelton.

16

See KRE 402 ("Evidence which is not relevant is not admissible .") ; KRE 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence .") .

17

See Crane v. Kentucky, 476 U.S . 683, 691 (1986) (reversing conviction as defendant had been deprived of his right to present his complete defense by trial court's not allowing defendant to present any evidence about the environment in which he gave his confession to cast doubt on the voluntariness of his confession) . Here, Hall was not completely deprived of an opportunity to suggest that Dixon was a manipulator or less than credible, nor was he unable to present any evidence of the substance of the joint interview - rather, he was simply required to abide by the rules of evidence concerning hearsay in presenting evidence of this joint interview.

18

KRE 103(a)(1) .

During that trip, Hall allegedly confessed to Shelton his involvement in the robbery and told Shelton that he gave Hodge the gun. We support the wisdom of our precedent that disapproves of the practice of asking a witness whether another witness is lying. 19 But no palpable error arose here. And these instances did not constitute prosecutorial misconduct rising to the level of reversible error . 20 Even if the questions of who was lying not been asked, jurors would almost certainly wonder who was lying because the conflicting accounts presented . Jurors were forced to determine which witnesses to believe in the course of deciding whether the prosecution proved beyond a reasonable doubt that Hall was guilty of the charged offenses . And while the fact that the jury ultimately convicted Hall of some of the charged offenses suggests jurors may have found some other witnesses' accounts more credible than Hall's, any such finding likely stemmed in large part from the conflicting accounts that Hall himself gave rather than stemming primarily from the prosecutor's questions about whether other witnesses were lying. For example, Hall initially gave one recorded statement to police and then gave another statement in which he claimed to have lied in the first statement on matters as basic as the purpose for his and Hodge's trip to Jackson's home. And on at least one occasion

19

20

See, e.g., Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) ("A witness should not be required to characterize the testimony of another witness . . . as lying .") . Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (stating that reversal because of prosecutorial misconduct is only warranted where misconduct is so prejudicial and egregious as to cast doubt on basic fairness of trial) .

10

during his testimony, Hall testified inconsistently with a statement he provided police and claimed he lied during his statement to police . Hall is not entitled to relief on this ground. D. Trial Court Properly Instructed Jury on First Degree Assault as LesserIncluded Offense of Attempted Murder Under Facts of this Case . The trial court instructed the jury on first-degree assault and seconddegree assault, which it viewed under the facts of this case as lesser-included offenses of the charged offense of attempted murder . The trial court relied on Perry v. Commonwealth2 l as authority for viewing first-degree assault as a lesser-included offense of attempted murder . Hall objected to instructing the jury on first-degree assault, but he consented to instructing the jury on second-degree assault.22 He argued firstdegree assault was not a lesser-included offense of attempted murder . He also claimed that Perry was inapplicable to the facts of his case because his codefendant principal, Hodge, clearly intended to kill both victims . In Perry,

21

839 S.W.2d 268 .

22

The second-degree assault instruction, like the first-degree assault instruction, also required certain findings not required by the attempted murder instruction, such as serious physical injury inflicted by use of a gun or dangerous instrument . Although we do not fully understand the reasoning behind Hall's accepting a second-degree assault instruction but objecting to a first-degree assault instruction, we note that defense counsel argued to the trial court that the seconddegree assault instruction was proper because it "tracked" the language of the attempted murder instruction and the levels of lesser-included homicide (or attempted homicide) offenses . The Commonwealth argued that the first-degree assault instruction also properly tracked the language of the attempted murder instruction and the different levels of homicide. Defense counsel did not specifically respond to the Commonwealth's argument but steadfastly maintained that a first-degree assault instruction should not be given .

there was evidence the defendant, who shot both victims, intended only to injure one victim . 23 Despite his general objection to a first-degree assault instruction and argument that Perry was not applicable, Hall did not specifically argue at trial that a first-degree assault instruction should not be given because it required particular statutory elements beyond those required for finding attempted murder. He did not specifically claim at trial he was deprived of notice that he would be required to defend against charges containing elements not contained in any charged offense . He did not then articulate an argument that the factbased approach used to determine lesser-included offenses in Perry should be abandoned in favor of a "strict statutory elements" approach for determining lesser-included offenses . Hall did argue in his motion for new trial that he "was not given notice in the indictment or otherwise that he would have to defend against a charge that included serious physical injury as a necessary element ." He also argued in his new-trial motion that Perry's rejection of a "strict statutory elements" approach for determining lesser-included offense instruction issues was no longer good law in light of Holland v. Commonwealth .24

23

24

See Perry, 839 S .W .2d at 270 (recounting how defendant shot both victims but told one victim, "I'll let you live this time .") See also id. at 273 (inferring from jury's

verdicts that defendant intended to kill one victim but only to injure other victim) . See 114 S .W.3d at 801 n .6 . 12

1 . Perry Facts and Significant Holdings .

In Perry, the Commonwealth cross-appealed from the trial court's granting the defendant a new trial on the basis the jury was improperly instructed on and convicted the defendant of first-degree assault, although he was not indicted for this offense . 25 The defendant was indicted for attempted murder. He argued he was improperly convicted under the first-degree assault instruction for an offense that included "elements of a distinct criminal offense from that for which the appellant had been indicted . . .

..26

We characterized Perry's argument as calling for a "strict statutory elements" approach for determining whether to instruct on another offense as a lesser-included offense of a charged offense . Such a "strict statutory elements" approach calls for looking at the elements of crimes as set forth by statute rather than looking at the facts set out in the indictment or the evidence presented at trial .27 We declined to adopt a "strict statutory elements" approach, finding it to be an "inherently inflexible" standard embraced by only a minority of courts . 28 We seemingly acknowledged in Perry that first-degree assault would not be a lesser-included offense of attempted murder under a strict statutory

25

839 S .W.2d at 271 .

26

Id. at 272, quoting Moms v. Commonwealth, 783 S.W.2d 889, 890 (Ky.App. 1990) .

27

Perry, 839 S.W.2d at 272 . ("His argument would require this Court to follow a strict

statutory `elements' approach . This approach looks to the elements of the main and lesser crimes as set out by the applicable statutes, rather than to look to the charge or the evidence .") .

28

13

elements approach . We noted : "Assault in the first degree requires a state of mind, an act and a result, `serious' physical injury. Attempted murder requires only a state of mind and an act, but does. not require any injury."29 So the statute defining first-degree assault requires finding at least one element serious physical injury - not required by the statute defining attempted murder . But we concluded the trial court properly instructed on first-degree assault as a lesser-included offense of attempted murder under the facts of that case . We noted determinations of whether one offense could properly be characterized as a lesser-included offense of another offense are governed by Kentucky Revised Statutes (KRS) 505 .020(2), which provides : A defendant may be convicted of an offense that is included in any offense with which he is formally charged . An offense is so included when:

29

(a)

It is established by proof of the same or less than all the facts required to establish the commission of the offense charged ; or

(b)

It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein ; or

(c)

It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission ; or

(d)

It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property[,] or public interest suffices to establish its commission.

Id. at 273 . 14

And we determined under the facts of that case first-degree assault could qualify as a lesser-included offense under KRS 505.020(2)(a), which provides that a crime qualifies as a lesser-included offense if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged . . . .» 30 Essentially, first-degree assault was established by proof of the same or less than all the facts required to establish attempted murder in Perry because serious physical injury was not at issue. Because Perry shot the victim, causing serious physical injury but not death, the jury could convict Perry of attempted murder if the jury believed he intended to kill the victim. But it could convict Perry of first-degree assault if the jury believed he intended only to injure the victim. We noted that Perry did not dispute that "serious physical injury" did occur because of the victim's being shot and that Perry's causing "serious physical injury" would satisfy the "substantial step" element of attempted murder . 31 Employing a fact-based approach rather than a strict statutory elements approach, "[t]he only element in this case which separated a conviction for attempted murder from first-degree assault was the mental state of Perry at the time of the incidents ."32 And we concluded that the jury properly determined from the evidence that Perry only intended to injure the victim, whom he was

30

Id. at 272 .

31

Id. at 273 .

32

Id. 15

convicted of assaulting in the first degree, "in contrast to their decision that he indeed intended to kill" another victim, whom Perry was convicted of attempting to murder. 33 So we determined in Perry that the trial court properly instructed the jury on first-degree assault and reversed the trial court's order granting a new trial on the assault conviction .

2. Perry is Still Good Law. Hall contends this Court noted in Holland v. Commonwealth that other jurisdictions have held that first-degree assault is not a lesser-included offense of attempted murder. Hall argues that Perry's holding to the contrary 34 is no longer good law in light of our comments in Holland. 35 But we agree with the Commonwealth that we acknowledged other jurisdictions' holdings that assault is not a lesser-included offense in dictum in Holland . In Holland, we were not

33 34

See Perry, 839 S.W.2d at 273 . ("First-degree assault can be an included offense of attempted murder if the missing element which prevents the murder from being consummated is not a necessary element of first degree assault. . . . If the jury believes that the defendant intended to kill the victim, he can be convicted of attempted murder . If on the other hand, they believe that he did not intend death but only intended to injure the victim, he could be convicted of first-degree assault.") .

35

Hall cites Holland, 114 S.W.3d at 801 n .6, in which this Court noted that Perry was rendered before this Court returned to the double jeopardy "same element" analysis of Blockburger v. United States, 284 U.S . 299 (1932), in Commonwealth v. Burge, 947 S.W.2d 805, 809-11 (Ky. 1996) ; noted that this Court had "not had an opportunity since Burge to reconsider whether an [asssault offense can be a lesserincluded offense to [a]ttempted [muurder" under the Blockburger test but that other jurisdictions held that assault crimes were not lesser-included offenses of attempted homicides ; and noted that this Court distinguished between Kentucky Revised Statutes (KRS) 507 homicide offenses (requiring death of victim) and KRS 508 assault offenses (requiring physical injury) and found an instruction on fourth-degree assault as a lesser-included offense of murder to be improper in Commonwealth v. Hager, 41 S .W.3d 828 (2001) . 16

directly faced with a question of whether an assault instruction could be given as a lesser-included offense of attempted murder . 36 Despite our dictum in Holland suggesting that perhaps Perry ought to be re-examined in light of our embracing a "same elements" test for determining whether an offense is a lesser-included offense for double jeopardy purposes in Commonwealth v. Burge, we have not overruled Perry. Perry has continued to be cited in court cases and secondary sources for the specific proposition that first-degree assault can sometimes be a lesser-included offense of attempted murder . And it is cited for the more general proposition that a strict statutory elements approach should not be utilized to determine if a trial court should instruct a jury on an unindicted offense as a lesser-included offense of a charged offense . Perry is cited as authority for allowing instructions on uncharged offenses where the facts alleged in the indictment or the evidence presented at trial supported such instructions .38

36

In Holland, we noted that the defendant had been indicted for attempted murder, 114 S.W.3d at 795, and that the trial court had instructed the jury on both attempted murder and on first-degree assault as a lesser-included offense of attempted murder. Id . at 801 . The defendant was convicted of attempted murder (rather than assault), id. at 801-02, and did not claim that the trial court erroneously instructed on assault on appeal to this Court.

37

See Phillips v. Commonwealth, 2005-CA-001151-MR, 2007 WL 1207122 at *4 (Ky.App . April 20, 2007) ("to the extent Phillips is arguing that an instruction for first-degree assault as a lesser-included offense of attempted murder was error, we disagree. See Perry v. Commonwealth, 839 S.W.2d 268, 272-73 (Ky.1992) .") .

38

See Commonwealth v. Day, 983 S .W.2d 505, 509 (Ky. 1999) ("A lesser included offense is one which includes the same or fewer elements than the primary offense. KRS 505.020(2)(a) ; Wombles v. Commonwealth, [831 S .W .2d 172, 175 (Ky. 1992)] . This does not require a strict `statutory elements approach,' so long as the lesser offense is established by proof of the same or less than all of the facts required to establish the commission of the charged offense. Perry v. Commonwealth, 17

3.

We Decline to Adopt Strict Statutory Elements Approach and Retain Fact-Based Approach Embraced in Perry. We are aware of arguments that a Blockburger-type strict statutory

elements approach should govern questions of which offenses a trial court may properly instruct the jury on as lesser-included offenses of charged offenses .39 But we decline to adopt such a strict statutory elements approach here,

[839 S.W .2d 268, 272 (Ky. 1992)] .") . Accord, Bailey v. Commonwealth, 2008-CA001108-MR, 2009 WL 2633507 at *2 (Ky.App . Aug. 28, 2009), citing Perry and Day. See also WILLIAM S . COOPER & DONALD P. CETRULO, KENTUCKY INSTRUCTIONS TO JURIEs § 1 .05 (5th ed . 2006), citing Perry, 839 S.W.2d at 272. 39

See Gill v. Commonwealth, No . 2009-CA-001884-MR, 2011 WL 345808 at *2 (Ky .App . Feb . 4, 2011) (in upholding trial court decision not to instruct on lesser included offense, stating: "We recognize that the Supreme Court has never explicitly overruled Perry and has not had an opportunity since Burge to reconsider whether an assault offense can be a lesser-included offense to attempted murder. See Holland v. Commonwealth, 114 S .W .3d 792, 801 n.6 (Ky. 2003) . Furthermore, the Burge/Blockburger test applies to determine whether a charge is a lesserincluded offense for double jeopardy purposes . However, we conclude that the same elements test of Burge and Blockburger is relevant to determine whether a lesser-included offense instruction is required . . . a lesser included offense is one which is established by proof of the same or less than all the facts required to establish the commission of the offense charged. KRS 505.020(2)(a) . [I]f the lesser offense requires proof of a fact not required to prove the greater offense, then the lesser offense is not included in the greater offense, but is simply a separate, uncharged offense.") (internal quotation marks omitted) . See also WAYNE R. LAFAVE AND JEROLD H . ISRAEL, CRIMINAL PROCEDURE § 24.8(e) (Defining the lesser-included offense) (2010), quoting Schmuck v. United States, 489 U.S. 705, 720-21 (1989) (noting that approach focusing on statutory elements of crimes rather than facts of individual case in determining whether jury should be instructed on another offense as lesser-included offense of charged offense "permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly . . . [and] promotes judicial economy by providing a clearer rule of decision and by permitting appellate courts to decide whether jury instructions were wrongly refused without reviewing the entire evidentiary record for nuances of inference.") (We note that Schmuck considered which approach was appropriate for determining jury instructions in federal courts under the Federal Rules of Criminal Procedure and, thus, has no application to determining which approach governs Kentucky state courts following Kentucky statutes and court rules) . 18

especially in light of Hall's failure clearly to advocate such an approach until after the trial was over . We acknowledge a strict statutory elements approach to deciding lesserincluded instruction issues might seem more consistent with our use of that same approach to determining lesser-included offenses for purposes of double jeopardy. We also recognize a strict statutory elements approach might appear to offer more certainty and judicial economy. But a strict statutory elements approach has its own disadvantages . 40 Most importantly, that approach may deprive a defendant of an opportunity for a desired lesser-included offense instruction because of differences in statutory elements even where the defendant is willing to concede that additional elements of uncharged offenses are not really at issue in the case . So we decline to adopt a strict statutory elements approach to determining whether a trial court can properly instruct a jury on an uncharged offense as a lesserincluded offense of a charged offense . 4.

First-Degree Assault Can Be Lesser-Included Offense ofAttempted Murder Depending on Facts of Particular Case. Having chosen to retain the fact-based approach embraced by Perry

rather than adopt the strict statutory elements approach to determine what uncharged offenses a trial court may properly instruct a jury on as lesser-

40

§ 24.8(e) (noting that strict statutory elements approach "has been criticized as too mechanical and inflexible" and "[o]ften it excludes lesser offenses that reflect the true criminal nature of the committed conduct and that clearly are within the framework of the transaction as recognized by all of the parties .") . See LAFAVE & ISRAEL

19

included offenses of charged offenses, we find no reason to disturb Perry's holding that first-degree assault can be a lesser-included offense of attempted murder depending upon the facts of a particular case. 5.

Despite Charged Offense of Attempted Murder Not Requiting Element of Serious Physical Injury, Facts Set Forth in Indictment Provided Hall with Notice that Victim May Have Suffered Serious Physical Injury. Although the indictment did not charge Hall with first-degree assault or

otherwise explicitly inform Hall he would have to defend against a charge that included serious physical injury as a necessary element, the indictment did specify that Hall had wantonly engaged in conduct resulting in Hodge shooting and stabbing Mitchell . And, as a matter of common sense, most defendants notified they are charged with engaging in conduct resulting in a victim being both shot and stabbed surely suspect the. victim was seriously physically injured. So Hall's post-trial claims of surprise at having to defend against allegations of serious physical injury seem suspect on a common-sense level. And we believe that the trial court properly applied Perry to allow an instruction on first-degree assault as a lesser-included offense of attempted murder despite the fact that the statutory offense of first-degree assault can require certain elements (such as serious physical injury) not required by the statutory offense of attempted murder. 41

41

Although we conclude that Hall had adequate notice that Turner may have suffered serious injury, we express no opinion on whether there was sufficient evidence of serious physical injury to support Hall's first-degree assault conviction (which we reverse on other grounds in part II . E. of this opinion) . 20

6. Perry Supports First-Degree Assault Instruction Under Facts of this Case. Perry holds that where the victim's suffering a serious physical injury is not really at issue, a first-degree assault instruction can be given as a lesserincluded offense when the defendant's intent (to kill or to injure) determines whether he or she is guilty of first-degree assault or attempted murder . 42 And we believe this holding applies to warrant a first-degree assault instruction in this case, despite some obvious factual differences between this case and Perry. Perry is somewhat different in that Perry was charged with attempted intentional murder and convicted of first-degree assault as a principal, whereas Hall was charged with attempted wanton murder as a complicitor. Despite this factual difference, Perry still applies to allow a first-degree assault instruction in this case . The additional elements required by first-degree assault over attempted murder under the facts here (serious physical injury and use of a gun or dangerous instrument) were not really at issue . Instead, the pivotal issue here was whether there was intent to kill or merely injure Turner.43 So

42

Perry, 839 S.W.2d at 273. ("The circumstances in this case warranted an instruction on first-degree assault as an alternative verdict to attempted murder. The trial court properly included the instruction since Perry did not dispute that `serious physical injury' resulted from the gunshot wound to Hayden. The only element in this case that separated a conviction for attempted murder from firstdegree assault was the mental state of Perry at the time of the incidents . The decision then to convict Perry of attempted murder or first-degree assault turned on whether the jury believed that the Commonwealth had presented sufficient evidence of Perry's mental state at the time of the incident . That is, did Perry actually intend to kill Hayden, or did he merely intend the consummated act of first-degree assault?")

43

The trial court's instruction on attempted murder is somewhat unclear as to whether the jury had to find that Hall somehow intended for Turner to be killed or whether it was enough for Hodge to have that intent . The attempted murder 21

the trial court properly followed Perry and allowed an instruction for firstdegree assault as a lesser-included offense of attempted murder under the facts of this case . E. Trial Court Erred in Refusing to Instruct on Facilitation to Assault. Although the trial court properly instructed the jury on first-degree assault under a complicity theory44 as a lesser-included offense of attempted murder, we reverse Hall's first-degree assault conviction because the trial court erred in refusing to instruct the jury on facilitation to assault as a lesserincluded offense of complicity to assault despite the existence of evidence to support such an instruction . While Hall objected to a first-degree assault instruction, he requested that a facilitation to assault instruction be given if the trial court instructed the jury on first-degree assault. Defense counsel did not actually tender a facilitation instruction . But Hall's counsel argued that evidence Hall drove Hodge to the victim's home and provided the gun to Hodge 45 but did not intend

44

45

instruction, unlike the first-degree assault instruction, required a finding that Hodge attempted to kill Turner . It also required a finding that Hall "under circumstances manifesting an extreme indifference to human life, was wantonly engaging in conduct, which created a grave risk of death to Mitchell Turner, and which resulted in Tony Clayton Hodge shooting and/or stabbing Mitchell Turner with intent to cause his death ." We note that despite Hall's insistence that he should receive a facilitation to assault instruction (and his overall objection to the trial court instructing the jury on first-degree assault as a lesser-included offense to attempted murder), he does not claim that the trial court incorrectly instructed the jury on assault by complicity. Although Hall denied giving Hodge the gun in his testimony, other witnesses testified that Hall gave Hodge the gun. 22

that anyone be hurt was sufficient evidence to support a facilitation instruction . 46 The trial court declined to give a facilitation to assault instruction, stating it was not warranted under the facts and the statute (KRS 506.080(1)) defining facilitation as follows : A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime . The trial court offered Hall's denial of knowledge that Hodge would assault the victim as one reason why it refused to instruct on facilitation to assault. But the trial court also more generally suggested that it was denying the instruction based on the facilitation statute and the testimony, stated that it had been unable to craft a facilitation to assault instruction that fit the proof presented, and asked whether defense counsel had prepared a facilitation instruction to tender . Although perhaps the trial court focused on Hall's denial of knowledge that Hodge intended to assault Turner as negating the required mental state for facilitation, the trial court may have also had concerns about whether the evidence showed that Hall provided the means and opportunity for

46

Although tendered instructions may aid the trial court and appellate courts in determining whether a particular instruction is warranted, one is not required to tender an instruction to preserve an argument about whether to instruct the jury on a particular matter; more precisely, objecting to the trial court's denial of one's request for an instruction on that matter is sufficient to preserve the issue for review so long as one states "specifically the matter to which the party objects and the ground or grounds of the objection ." RCr 9 .54(2) . 23

Hodge to commit the assault and, thus, could satisfy the forbidden-act requirement of facilitation . The Commonwealth argues the trial court properly denied a facilitation instruction because in Hall's trial testimony, (1) he denied knowing of Hodge's intent to assault anyone and (2) he denied providing the gun to Hodge. The Commonwealth cites Smith v. Commonwealth47 as authority for the proposition that a facilitation instruction should be denied when the defendant denies knowledge of the principal co-defendant's intent to commit the crime .48 But we distinguished Smith as a case with a lack of sufficient evidence to support facilitation in Chumbler v. Commonwealth.49 We indicated in Chumbler that even where a defendant denied knowledge of a principal co-defendant's intent to commit the crime, the defendant may be entitled to a facilitation instruction where the jury could infer the defendant's knowledge from the defendant's conduct . 50 Despite Hall's denials of knowing of his co-defendant's intent and of providing a gun to his co-defendant, there was evidence to support an instruction on facilitation to assault . A jury was not obligated to accept Hall's denial of knowledge of Hodge's intent to assault or his denial of providing the

47

722 S .W.2d 892 (Ky. 1987) .

48

See id. at 896-97 (holding that facilitation to murder instruction not warranted despite defendant's claims that his leaving gun in alleged murderer's sight was providing a means and opportunity to commit murder because defendant never claimed to know of murderer's intentions) .

49

905 S.W.2d 488, 498 (Ky. 1995) .

50

Id. at 499 .

24

gun to Hodge . 51 In the alternative, a jury could infer Hall's knowledge of Hodge's intent to assault from Hall's admitted knowledge Hodge possessed a gun when entering the premises to rob Jackson . And a jury could believe other witnesses' testimony that Hall provided Hodge with the gun52 and could also consider the fact Hall admittedly drove Hodge to the scene of the crime to conclude that he provided a means or opportunity for Hodge to commit the assault without intending to promote theassault. So there was evidence that would support instructing the jury on facilitation to assault. It is possible a reasonable jury could find Hall not guilty of assault by complicity and, yet, find beyond a reasonable doubt that Hall was guilty of facilitation to assault; so an instruction on facilitation as a lesser-included offense of complicity to assault was warranted . 53 The jury could infer that Hall knew Hodge would commit assault because Hall knew Hodge took a gun into the residence to commit the robbery and find Hall provided a means or opportunity for Hodge to commit assault by driving him to the residence or providing a gun, even if a jury did not find all the requisite elements of

51

52

53

See generally Robinson v. Commonwealth, 325 S.W .3d 368, 371 (Ky. 2010) ("the jury may believe all of a witness's testimony, part of a witness's testimony, or none of it .) See id. ("Deciding whose version to believe and weighing witness credibility is entirely within the jury's discretion .") . See Thompkins v. Commonwealth, 54 S .W.3d 147, 151 (Ky. 2001) ("An instruction

on a lesser-included offense is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt of the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.") . 25

complicity to assault. 54 Although we sympathize with the trial court's difficulty in ruling upon the request for a facilitation instruction without the benefit of a tendered facilitation instruction to clarify how the evidence might show that the requisite elements of facilitation are fulfilled, we conclude that the trial court erred in denying Hall's request for an instruction on facilitation to assault. F. Trial Court Properly Denied Request for Instructions on Facilitation to Robbery and Burglary. We have concluded the trial court erred in refusing to instruct the jury on facilitation to assault, but we further conclude the trial court properly denied Hall's requests for instructions on facilitation to robbery and facilitation to burglary. A defendant is not entitled to an instruction not supported by the evidence . 55 And, as the trial court noted, the evidence was that Hall clearly took an active role in planning and carrying out the robbery and burglary, including going into the home and taking money . There was no evidence he merely facilitated the burglary and robbery.

54

55

The requisite elements of complicity to assault as instructed by the trial court included : (1) that Hodge shot or stabbed Turner ; (2) that Hall "solicited, counseled, commanded[,J or engaged in a conspiracy with" Hodge to rob Jackson ; and (3) that in so doing, Hall wantonly engaged in conduct "which created a grave risk of death" to Turner and caused serious physical injury "by use of [a] gun or dangerous instrument under circumstances manifesting an extreme indifference to human life ." Dixon v. Commonwealth, 263 S.W.3d 583, 586 (Ky. 2008) (instruction on lesserincluded offense such as facilitation is only warranted if supported by the evidence) . 26

We explained in Monroe v. Commonwealths6 the difference between complicity and facilitation : "a complicitor must be an instigator, or otherwise invested in the crime, while a facilitator need only be a knowing, cooperative bystander with no stake in the crime." 57 Here, Hall admitted to being an instigator, who planned with others to burglarize and rob Jackson, with a clear vested interest in the crimes - the desire to obtain money to meet his drugrelated and other expenses. And there was no evidence presented indicating he was merely a bystander who knew Hodge would rob and burglarize the victims but was indifferent as to whether the crime would be committed and had no stake in the crime .58 To the contrary, the uncontradicted evidence showed Hall took an active role in planning and carrying out the burglary and robbery; consequently, he was not entitled to an instruction on facilitation to robbery and burglary. 59 So the trial court did not err in refusing to instruct the jury on facilitation to robbery and facilitation to burglary.

56 57

244 S.W.3d 69 (Ky. 2008) . Id. at 75 .

58

See White v. Commonwealth, 178 S.W.3d 470, 490-91 (Ky. 2005) (upholding denial of facilitation instruction as"[t]he evidence presented at trial supported only two theories : that Appellant was an active participant in planning the crime and intended that it be carried out, or that he was an innocent bystander who happened to be present when some of the instruments used in the crime were acquired . There was no evidence of a middle-ground violation of the facilitation statute .") .

59

Dixon, 263 S .W.3d at 587 (defendant not entitled to instruction on facilitation to

robbery where evidence indicated he took an active role in robbery, and there was no evidence that he was "wholly indifferent" to whether crime was actually committed .") . 27

G. Prosecutor's Asking Jury to Send Message to Hall in Closing Argument of Guilt Phase Did Not Create Palpable Error or Constitute Egregious Prosecutorial Misconduct Warranting Reversal Under Facts of this Case. Hall contends the prosecutor made an improper "send a message" argument to the jury in closing argument in the guilt phase of the trial, although he admits he did not preserve the issue through objection.60 We expressed disapproval of "send a message" arguments in the guilt phase of trial in Cantrell v. Commonwealth, 61 even though we recognize that certain "send a message" arguments may be legitimate in penalty-phase closing arguments where such arguments are narrowly focused on deterrence objectives and do not attempt to bring community pressure to bear on the jury.62 But even "send a message" arguments in the guilt phase of trial do not always constitute .

palpable error .63

From our review of the record, it appears that the prosecutor asked the jury to send a message to Hall - not to the community - about what a local

60

61

Hall quotes the prosecutor in his brief as having told the jury in oral argument: "You've got to decide what kind of behavior that you're going to tolerate in your community . . . . You do what you should do as a Madison County resident, which is tell that guy what you're going to tolerate . All these people out here are going to sit by and watch you do it." From our review of the record, this quote seems substantially correct although possibly a word or two may have been different from what the prosecutor actually said. 288 S .W.3d 291, 299 (Ky. 2009) .

62 63

See Commonwealth v. Mitchell, 165 S .W .3d 129, 132 (Ky. 2005) (prosecutor's guiltphase closing argument containing a "send a message" argument was not palpable error, especially as this argument was made in direct response to pleas for leniency in defense guilt-phase closing argument but stating "we again caution the Commonwealth that it is not at liberty to place upon the jury the burden of doing what is necessary to protect the community .") .

28

jury would tolerate in the community. To the extent that the prosecutor made an improper "send a message" argument, it did not appear to be an egregious one . And because the prosecutor did not clearly insinuate that the jurors would be subjected to scorn from their community if they did not convict Hall or urge the jury to convict Hall for reasons other than the evidence and reasonable inferences from the evidence, Hall is not entitled to relief.64 To the extent the argument may have been improper, we do not believe it amounted to reversible prosecutorial misconduct because the argument does not appear to have been so "improper, prejudicial[,] and egregious as to have undermined the overall fairness of the proceedings . 1165 H. No Palpable Error Arose from References to Recidivism Rates in Penalty Phase . Although admitting the issue is unpreserved, Hall contends palpable error arose because the prosecutor improperly asked a witness during the penalty phase about national parole recidivism rates . 66

64

65 66

See Farmer v. Commonwealth, No. 2009-SC-000423-MR, 2010 WL 3722786 at *6

(Ky. Sept. 23, 2010) (holding that argument to send a message to defendant, not community, did not amount to palpable error because the argument did not attempt to coerce the jury to convict through community pressure or urge jury to convict based on reasons other than the evidence and reasonable inferences from the evidence) . See Brewer, 206 S .W .3d at 349 .

Hall cites Young v. Commonwealth, 129 S .W.3d 343, 344-45 (Ky. 2004), in which we held that presenting general statistical evidence about how often parole is granted during sentencing hearings was improper as support for his argument that inquiry into national recidivism rates of parolees was also improper. Obviously Young presents a slightly different inquiry ; and while its logic may seem somewhat applicable to the inquiry here, there was, nonetheless, no palpable error here from the questions asked or responses given as discussed in text. 29

Hall called a jail official to testify that Hall was very well behaved at the jail; he seemed remorseful ; and, in the jail official's judgment, Hall could be rehabilitated . The prosecutor objected, stating the jail official was not qualified to give opinions on whether someone could be rehabilitated . The trial court allowed Hall to ask the jail official about his qualifications to express such an opinion . The jail official then acknowledged he was not qualified to state whether someone could be rehabilitated, but he was qualified to testify about whether Hall would likely re-offend . The jail official stated Hall "did not strike" him as someone who would re-offend if given proper support in the form of treatment for drug addiction. The prosecutor then asked the jail official on cross-examination if he held himself out as an expert on whether someone released on parole would reoffend and asked him if he knew the national statistics for parolees reoffending. The official testified he did not know such national parole statistics but stated that around 82 percent of inmates in the local jail would return ; however, he believed that Hall would be in the 18 percent who did not return to the jail if Hall received help . Any error in the discussion of recidivism rates here did not amount to palpable error because the witness did not actually discuss recidivism rates of people released on parole . The witness admitted not knowing the national statistics . Although he volunteered the fact that a large majority of local jail inmates returned to his jail, the tenor of his testimony was that he believed Hall would be unlikely to get into trouble again if he got help for substance 30

abuse . In short, we do not find this inquiry into recidivism rates resulting in a law enforcement officer testifying favorably about Hall's chances of staying out of trouble affected his substantial rights or resulted in a manifest injustice . There was no palpable error67 and no reason to reverse on this ground . I.

Trial Court Properly Denied Motions for New Trial . "We review the trial court's denial of [an] Appellant's new trial motion for

abuse of discretion."68 We discern no such abuse of discretion here upon the specific allegations raised in Hall's motion for new trial, which we discuss in turn. 1.

No Reversible Error from Trial Court's Refusal to Conduct More Evidentiary Hearings on Allegations ofJuror Misconduct Raised PostTrial or from Denial of New Trial Motion . Hall alleges the trial court did not sufficiently investigate post-trial

allegations of juror misconduct. He filed original and amended motions for a new trial, which were based partly on post-trial allegations a juror told other jurors during deliberations that she had an uncle who was severely punished for killing a man in a bar fight, she believed Hall should receive at least as severe a punishment, and she had researched penalties on the internet . Hall attached to his motion for a new trial an affidavit by a juror (#40) who had made the allegations about another juror (#215) . Hall also claimed that Juror #215 had failed to reveal her uncle's criminal history on her jury

67 68

RCr 10.26.

Brown v. Commonwealth, 174 S .W .3d 421, 428 (Ky. 2005) (reviewing denial of motion for new trial based on allegations ofjuror misconduct under abuse of discretion standard of review) .

31

qualification form, which asked whether anyone in a prospective juror's family had a criminal history, and during voir dire questioning . The trial court conducted a hearing on the issue and questioned Juror #215 about the allegations . Juror #215 denied making such statements and said she only used the internet for making vacation reservations . The trial court denied this first motion for a new trial . The trial court observed that jury qualification forms are not sworn statements and further found any failure to note an uncle's criminal history on such a form was not an intentional act because the term family was not defined on the form. The trial court also reviewed the record of the voir dire and found that prospective jurors were not questioned about criminal history of family members . Lastly, the trial court found that Juror #215 denied conducting any internet research during trial and further noted defense counsel notified prospective jurors about the penalty range for charged and lesser-included offenses during voir dire . The trial court concluded that Hall "has not established improper outside influence upon the jury ." The trial court noted that following the hearing involving Juror #215, the court was notified Hall mistakenly identified Juror #215 and that some other unidentified juror made the statements . Hall then filed a second motion for a new trial, claiming that he misidentified the allegedly tainted juror and requested another Juror (#256) be called in for questioning . The trial court declined to do so in a written order denying the second motion for a new trial. The trial court explained the sworn affidavit of Juror #40 specifically identified Juror #215 as the juror who 32

allegedly conducted internet research and noted it was notified that the wrong juror had been called after its questioning of Juror #215. And it found that the information provided by Hall in the second motion for a new trial was insufficient to justify holding another hearing because there was no indication that Juror #256 had "discussed any outside information with the jury panel which in any way [a]ffected their decision," and Juror #40's affidavit indicated that "her" (apparently referring to juror who allegedly conducted internet research) "opinion was not persuasive with the jury." Then, citing RCr 10 .04, the trial court stated it would not allow jurors to be called as witnesses against each other. RCr 10 .04 states that "[a] juror cannot be examined to establish a ground for new trial, except to establish that the verdict was made by lot." So even the trial court's initial questioning of Juror #215 is not expressly permitted by our rules . And having questioned Juror #215 about the allegations, we do not believe that the trial court was obligated to question Juror #256 in the same manner or to grant Hall a new trial based upon the allegations made in one juror's unsupported affidavit. In a similar unpublished case, we affirmed a trial court's denial of a motion for a new trial where a sole juror alleged juror misconduct in an uncorroborated affidavit and held that this one juror's unsupported allegations were insufficient evidence to prove juror misconduct . 69

69

Woodall v . Commonwealth, No. 2004-SC-0931-MR, 2005 WL 2674989 at *3 (Ky. October 20, 2005) . 33

The trial court did not abuse its discretion in denying the motion for a new trial, and the trial court properly refused to conduct further proceedings to question jurors about alleged juror misconduct that was not brought to the trial court's attention until after the trial. 2.

No Reversible Error in Trial Court's Refusal to Investigate Further Post-Trial into Allegations that Dixon Watched Trial and Denial of New Trial on this Basis. Hall contends the trial court erroneously denied his motions for a new

trial and did not conduct a sufficient investigation on allegations Dixon watched trial proceedings on closed circuit television during trial . During the middle of trial, Hall alleged Dixon watched Hall's trial on closed circuit television from jail and contended this was a violation of KRE 615 (requiring separation of witnesses upon request) . The trial court questioned Dixon about the allegations . Dixon claimed to watch only portions of Hall's and Sue Hall's testimony, and the trial court noted Hall and Sue Hall testified after Dixon . The trial court also found Dixon's watching the trial rendered little apparent effect on Dixon's testimony, which was consistent with an earlier statement Dixon made to police . But the trial court allowed Dixon to be cross-examined and impeached by defense counsel concerning his watching the trial. Following trial, Hall filed a motion for a new trial in which he alleged Dixon actually watched much longer portions of the trial and provided a supporting affidavit to that effect from a defense law clerk who further investigated allegations of Dixon watching the trial. Apparently, other inmates 34

and jail personnel said they saw Dixon watching the trial on days other than those Dixon admitted in his earlier testimony . Hall claims Dixon watched Shelton's testimony and conformed his testimony to Shelton's, although he does not allege specifically how Dixon's testimony conformed to Shelton's . The trial court denied the motion for a new trial and refused to conduct additional hearings on this issue . In its written order denying the first motion for a new trial, the trial court explained its reasoning for denying a new trial or other relief upon the allegations that Dixon watched additional testimony in jail : With the additional information presented by the Defendant in the Motion for New Trial, the Court must examine the importance of Mr. Dixon's testimony and the effect of what he might have heard on his testimony . [Hatfield v. Commonwealth, 250 S .W .3d 590, 594 (Ky. 2008)] . During the course of the investigation, Mr. Dixon was interviewed by Detective Chris Short with the Kentucky State Police . His testimony at trial remained consistent with the prior statement[,] and the defense had ample opportunity to cross examine him on the first day he testified and when they recalled him on the fourth day of trial. While his testimony was not favorable to the Defendant, it was more cumulative in nature . If Mr. Dixon was watching the trial at the time stated by Officer Nicholson (2 / 24 / 09 at 11 : 00 a.m.), he would have heard Detective Short describe the crime scene and would have observed the crime scene video . This information would have little effect, if any, on his testimony . Officer Nicholson's statement is consistent with that of Travis Dixon regarding the portion of the trial viewed. The concern during trial was that Mr. Dixon heard the testimony of Tim Shelton . Mr. Dixon was specifically questioned regarding this matter and denied hearing the testimony . Additionally, the defense had opportunity to cross-examine and impeach Mr. Dixon after learning that he watched a portion of the trial .

35

As we explained in Woodard v. Commonwealth, 70 the rule requiring separation of witnesses on request, KRE 615, applies to what happens in the courtroom, although the spirit of the rule is violated "when witnesses coordinate their testimony" outside the courtroom.71 But where witnesses allegedly engaged in collusion outside the courtroom, we stated all the trial court could do was question the witnesses and allow the witnesses' testimony to be "subject to proper impeachment on cross- examination ." Noting the trial court followed this best course, we found no abuse of discretion .72 Similarly, here, the trial court questioned Dixon about his watching portions of the trial at the jail and allowed him to be cross-examined by defense counsel about watching portions of the trial at the jail. We discern no abuse of discretion . Furthermore, we note that Dixon told the trial court he heard only Hall's and Sue Hall's testimony so it did not believe his watching these portions of the trial had any effect on his testimony especially because the trial court believed that Dixon's testimony was consistent with a prior statement he gave police . As for later allegations that Dixon watched more testimony than he admitted to the trial court, even assuming such allegations were true, Hall fails specifically to allege how Dixon's testimony was actually affected by other witnesses' testimony . Although he generically asserts that Dixon tailored his

70

219 S.W.3d 723 (Ky. 2007), abrogated on other grounds by Commonwealth v. Prater, 324 S.W.2d 393 (Ky. 2010) .

71

Id. at 728-29 .

72

36

testimony to Shelton's testimony, he does not specifically allege how Dixon's testimony followed Shelton's testimony . The trial court did not abuse its discretion in denying Hall's motion for a new trial on the ground that Dixon violated the rule on separation of witnesses 73 or in denying further hearings on this issue. J.

Hall is Not Entitled to Further Relief for Alleged Cumulative Error. Although we reverse Hall's first-degree assault conviction due to the trial

court's erroneously refusing to instruct the jury on facilitation to assault, Hall is not entitled to any further relief for other alleged errors as he "received a fundamentally fair trial with any [other] errors being so minor that even their cumulative effect does not demand reversal ." 74 III. CONCLUSION. For the foregoing reasons, we reverse Hall's conviction for first-degree assault, affirm all other convictions, and remand for further proceedings in conformity with this opinion . All sitting . Abramson, Cunningham, Noble, Scott, and Venters, JJ., concur. Schroder, J ., concurs, in part, and dissents, in part, by separate opinion .

73

74

See Capshaw v. Commonwealth, 253 S .W .3d 557, 562, 567 (Ky .App . 2007) (reviewing denial of motion for new trial based partly on allegations of violation of rule on separation of witnesses under abuse of discretion standard of review) .

Roach v. Commonwealth, 313 S .W .3d 101, 113 (Ky. 2010) (affirming trial court judgment despite allegations of cumulative error because "Roach received a fundamentally fair trial with any errors being so minor that even their cumulative effect does not demand reversal .") . 37

SCHRODER, J., CONCURRING, IN PART, AND DISSENTING, IN PART: I concur on the manslaughter, burglary, and robbery convictions . However, as to the first-degree assault conviction, I dissent on grounds that the indictment failed to state an offense. RCr 8 .18. Hall was only instructed on first-degree assault as a lesser-included offense of attempted wanton murder, which the majority opinion essentially concedes is a non-existent offense. A defendant cannot be convicted of a lesser-included offense of a non-existent crime . See

Nease v. State, 592 S.W.2d 327, 332 (Tenn.Crim.App. 1979) from our sister state. Although the specific argument was not raised below, failure to charge an offense can be raised by the court at anytime, RCr 8 .18, and would constitute palpable error .

COUNSEL FOR APPELLANT : Julia Karol Pearson Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General of Kentuc Bryan Darwin Morrow Office of the Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601

RENDERED : APRIL 21, 2011 TO BE PUBLISHED

,*ixyrrmQ (~Vurf of ~6u~6ufuxhv 2009-SC-000762-DG

MICHAEL ALLEN HALLUM

V.

APPELLANT

ON REVIEW FROM COURT OF APPEALS CASE NO . 2009-CA-001077 LOGAN CIRCUIT COURT NO. 01-CR-00061

COMMONWEALTH OF KENTUCKY

APPELLEE AND

2010-SC-000049-DG JOE B. JONES

V.

APPELLANT

ON REVIEW FROM COURT OF APPEALS CASE NO . 2009-CA-000545 MARION CIRCUIT COURT NO . 05-CR-00016

COMMONWEALTH OF KENTUCKY

OPINION OF THE COURT BY JUSTICE SCOTT REVERSING

APPELLEE

Today, in a consolidated appeal, we are confronted with one of the final cases concerning an inmate's pro se documents timely placed in the prison mail system, yet filed in the trial court after the deadline expired. We have resolved this inequitable paradigm prospectively by amending our rules to add the prison mailbox rule, RCr 12 .04(5) . 1 I. Background While incarcerated in different penal systems, Appellants, Joe Jones and Michael Hallum, each filed an RCr 11 .42 motion for post-conviction relief. Following denial of these motions by the trial court, each Appellant, pro se,2 filed a notice of appeal along with a motion to proceed in forma pauperis.

The

Court of Appeals dismissed both appeals due to each Appellant's respective failure to file the motion to proceed in forma pauperis within the mandatory 30day time period . RCr 12 .04(3) ("[t]he time within which an appeal may be taken shall be thirty (30) days after the date of entry of the judgment or order from which it is taken.") .3

RCr 12.04(5) states: "If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid ." 2

The Commonwealth briefly argues that Jones was represented by counsel and cannot reap the benefits of the prison mailbox rule . This argument is meritless, as the record clearly evinces that Jones, pro se, submitted his notice of appeal and in forma pauperis motion : the documents are signed "Joe B . Jones, pro se" and "Joe Jones, PRO SE."

3 As a condition precedent to having an appeal filed and docketed, an appellant must pay the filing fee . When juxtaposing our rules of procedure, an indigent appellant must file both the motion to proceed in forma pauperis and notice of appeal within the 30-day period to have his appeal filed and docketed . See CR 73 .02 (1) (b) (" [i]f

Jones placed his pro se notice of appeal and motion to proceed in forma pauperis in the prison mail system on March 15, three days prior to the 30-day deadline.4 However, the motion was not filed, nor was the notice marked tendered, until March 19--one day outside the 30-day deadline . Hallum placed his pro se notice of appeal and motion to proceed in forma pauperis in the prison mail system on November 2, three days prior to the 30-day deadline.5 However, the motion was filed and the notice marked tendered on November 13-eight days after the deadline . We granted each Appellant's petition for discretionary review, consolidated the cases, and now reverse the Court of Appeals' decisions . II. Analysis A. The Prison Mailbox Rule Almost seventy years ago, the Supreme Court of the United States proclaimed that it is "beyond doubt that prisoners have a constitutional right of access to the courts ." Bounds v. Smith, 430 U .S. 817, 821 (1977) (stating that the Court recognized this right in Ex pane Hull, 312 U .S . 546 (1941)) . The Court further stated that this fundamental right required "inmate access to the courts [that] is adequate, effective, and meaningful ." Id. at 822 . This constitutional axiom is no less applicable during the inmate's appeal, especially when he is without the assistance of an attorney to help in timely tendered and accompanied by a motion to proceed in forma pauperis supported by an affidavit, a notice of appeal or cross-appeal shall be considered timely .") . 4 5

The trial court entered the order denying Jones' motion on February 16 . The trial court entered the order denying Hallum's motion on October 6, 2008.

filing his notice of appeal . As such, the High Court recognized the plight of pro se prisoners constricts their ability to "take the steps other litigants can take to

monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline." Houston v. Lack, 487 U.S . 266, 270-71 (1988) . Prisoners lack the ability to personally deliver the notice, mail and track the notice through the U.S. Postal Service, or phone the court to ensure receipt . Id. -at 271 . Consequently, the Court adopted the prison mailbox rule, which treated the pro se prisoner's notice of appeal as "filed" when he delivered it to the authorities for forwarding to the trial court. Id. at 270. Numerous states have adopted versions of the prison mailbox rule, yet Kentucky lagged behind .6 See Robertson v. Commonwealth, 177 S .W.3d 789, 793-94 (Ky. 2005) (Scott, J ., concurring in part and dissenting in part)

(collecting cases) . However, as of January 1, 2011, Kentucky joined these states by adopting RCr 12 .04(5), which states : "[i]f an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid ."

6 Robertson was set to create a common law .version of the inmate mailbox rule, but that measure failed to achieve a majority .

B . Retroactive Application of the Prison Mailbox Rule Unfortunately, RCr 12 .04(5) was not in effect at the time Jones and Hallum delivered their notices and motions to prison officials . Consequently, Jones and Hallum will not receive the benefit of the prison mail box rule unless we retroactively apply RCr 12 .04(5) . We recently fashioned the framework delineating the retroactive application of a new rule . In Leonard v. Commonwealth, Leonard, after exhausting his direct and collateral appeals, attempted to re-open his RCr 11 .42 proceedings following a procedural rule change announced in another decision . 279 S .W.3d 151, 154-55 (2009) (discussing the common law procedural rule stated in Martin v. Commonwealth, 207 S .W.3d 1 (2006)) . In a case of first impression, we created a standard of retroactivity applicable to new rules "not of constitutional dimension." Id . at 160 . Notwithstanding our latitude in this uncharted area, we adopted the Supreme Court of the United States' proscription against applying new rules retroactively following final judgment, and further clarified that in collateral attacks, the relevant "judgment" is that which resolves the collateral attack. Id. Thus, in the context of an RCr 11 .42 proceeding, judgment is final--preventing retroactive application of the new rule-after the order denying the RCr 11 .42 motion is appealed and affirmed. Id. Consequently, we concluded that Leonard could not avail himself of the new rule announced in Martin because his RCr 11 .42

collateral attack was denied and affirmed almost seven years prior to Martin . Id. at 160-61 . When applying the retroactivity framework to the present case, the temporal aspect of the retroactivity determination is clear: Appellants' cases were pending before us when the new prison mailbox rule took effect. Therefore, no final judgment had been entered which disposed of Appellants' collateral attacks . Consequently, under Leonard, the new prison mailbox rule can be retroactively applied to Hallum's and Jones' collateral attacks . We briefly pause to note that we are cognizant that Leonard concerned retroactive application of a common law rule, whereas the present case retroactively applies a new rule of criminal procedure . However, this is a distinction without a difference . The discretion to adopt common law rules is entrusted to the judicial branch as part of its function to "say what the law is ." Marbury v. Madison, 5 U .S . (1 Cranch) 137, 177 2 L.Ed. 60 (1803) . Similarly, the Kentucky Constitution invests us with "the power to prescribe . . . rules of practice and procedure for the Court of Justice ." Ky. Const. § 116 . Therefore, in both contexts it is within the province of this Court to interpret the lawoccasionally declaring appropriate common law rules--and to implement procedural rules . Therefore, based on the foregoing retroactivity analysis, we reverse the Court of Appeals' dismissal of Hallum's and Jones' appeals . Our holding is particularly narrow: retroactive application of RCr 12.04(5) is appropriate because Appellants' sought this precise relief, their case was not final when the new rule was implemented, and the mail box rule is procedural .

C. Robertson's

Equity Provision

Finally, in light of the recent rule change creating the prison mailbox rule, we must assess the continued viability of the judicially-created equitable tolling test. In Robertson v. Commonwealth, a factually parallel case involving dismissal due to the untimely filing of a pro se prisoner's motion, a narrow majority of this Court adopted the equitable tolling test-a measure applicable to prisoners who attempt to get documents timely filed, yet fail . We considered adopting a prison mailbox rule, but declined due to our reluctance to amend rules without following the formal procedures . Id. at 791 . Instead, we adopted the United States Court of Appeals for the Sixth Circuit's five-factor equitable tolling test . Under this amorphous balancing test, the trial court, before determining whether the deadline is tolled, must consider: (1) the petitioner's lack of notice of the filing requirement ; (2) the petitioner's lack of constructive knowledge of the filing requirement ; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim. Id. at 792 (quoting Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001)) . At the outset, we note that the application of the multi-factor equitable tolling test is arduous, "requir[ing] that the trial court engage in a more robust examination of the circumstances ." Id. at 796 (Roach, J ., dissenting) . Moreover, "we have a finite number of trial judges and time to handle an ever increasing docket of cases--and by depending on `equitable tolling' to solve the problem, we have created another hearing with multiple briefs and evidentiary

questions prior to the trial court's thoughtful review and ruling." Id. at 795 (Scott, J ., concurring in part and dissenting in part) . Furthermore, the adoption of equitable tolling test was a compromise provision, since there was no prison mailbox provision in place .$ With the recent enactment of the prison mailbox rule, the burdensome equitable tolling test is now duplicative and superfluous, with its utility marginalized. "Equity is the correction of that wherein the law, by reason of its universality, is deficient ." Houston v. Steele, 28 S.W . 662, 663 (Ky. 1894) . The prison mail box rule was crafted to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal; thus, there is no longer a need for Robertson's equitable tolling provision . Consequently, we overrule Robertson . III. Conclusion We reverse the Court of Appeals' decision and remand to the trial court for further proceedings not inconsistent with this opinion. All sitting . All concur.

8

In fact, Justice Roach characterized the majority's application of equitable tolling as "little more than an adoption of the prison mailbox rule by another name ." Id. at 796 (Roach, J ., dissenting) .

COUNSEL FOR APPELLANTS : Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601

COUNSEL FOR APPELAEES : Jack Conway Attorney General of Kentuc Jeffrey Allan Cross Bryan Darwin Morrow Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

'$UyrQmr~

~Vurf

of ~rufixxhv

2009-SC-000489-MR

JAMARKOS CAMPBELL

V.

APPELLANT

ON APPEAL FROM LINCOLN CIRCUIT COURT HONORABLE JEFFREY THOMAS BURDETTE, JUDGE NO. 08-CR-00055-001

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Jamarkos Campbell, appeals as a matter of right, Ky . Const . § 110, from a judgment entered upon a jury verdict convicting him of two counts of murder, two counts of first-degree wanton endangerment, two counts of first-degree robbery, and one count of first-degree burglary. For these crimes, Campbell was sentenced to a total sentence of life without the possibility of parole for twenty-five years. Campbell now raises the following arguments on appeal: (1) that his rights were violated by the taking of a DNA sample without legal authority and in violation of medical protocols, and the entering of the sample into the Kentucky Combined DNA Index System (CODIS) database ; (2) that his waiver of a juvenile transfer hearing was invalid ; (3) that the first-degree burglary instruction was erroneous ; (4) that the trial court erred by failing to give a

voluntary intoxication instruction on the burglary and robbery charges ; (5) that the prosecutor made improper statements in closing arguments impugning the integrity of defense counsel; (6) that the adult convictions for crimes committed after the present crimes were improperly admitted during the sentencing phase ; and (7) that the trial court erred in submitting for the jury's consideration the penalty of life without the possibility of parole for twenty-five years on the two murder charges . For the reasons stated below, we affirm . I . FACTUAL AND PROCEDURAL BACKGROUND In the light most favorable to the verdict, the facts are as follows . Campbell was born on February 6, 1985 . In February 2002, Campbell and his accomplices in the present crimes, Matthew Tolson, Nicholas Mundy, Deonte Simmons, and Charles Smith (collectively, codefendants) were friends who considered themselves to be members of the "Crips" gang. Campbell was five days short of being seventeen years old on the date of the crimes . Several of the codefendants were friends with a girl who told them about her drug dealer, Ryan Shangraw, who lived in a trailer in Lincoln County . Believing that Shangraw would be a good target for a robbery, on February l, 2002, the codefendants traveled to Lincoln County for that purpose . In preparation for the robbery the group obtained firearms, including a rifle and two handguns, and each got a bandanna to wear as a disguise . The group smoked marijuana and drank on the way to Shangraw's trailer . In the meantime, Shangraw, Bo Upton, Tabitha Wilder, and Tara Strunk

had gathered at Shangraw's trailer prior to their planned attendance at a highschool dance . As they were socializing and smoking marijuana, four of the codefendants, led by Campbell wielding the rifle, burst into the trailer and demanded drugs and money. Shangraw and Upton told them to "calm down and we'll get you what you want," and Shangraw got up and started toward the kitchen . Chaos erupted as the girls at the trailer screamed and begged for their lives. As Shangraw walked toward the kitchen, Campbell shot and killed him . 1 Upton then stood up and threw his wallet toward the group. The pandemonium escalated and numerous shots were fired in the small living room of the trailer. As a result, Upton was also shot and killed, Wilder was shot in the arm, and Strunk's arm was grazed by a bullet . The group made a successful getaway, and as they fled from the scene they discarded the guns and bandannas, including Campbell's. These discarded items were recovered by police . shortly after the shootings . Campbell's bandanna was subsequently tested for DNA, and the resulting DNA data was uploaded into the CODIS system . However, despite this physical evidence no leads developed and the crimes remained unsolved. In 2006 Campbell, incarcerated in the Madison County jail on an unrelated matter, was caught in possession of contraband . He had placed the contraband in his mouth, and spit it out as his cell was being searched . A

Tolson testified that Campbell carried the rifle and shot Shangraw . It appears that Simmons most likely fired the shot that killed Upton .

DNA sample, taken to link him to the contraband, was entered into CODIS . That sample was found to match the one entered into CODIS from one. of the bandannas found by police after the Lincoln County murders . This match led the police investigating the Lincoln County incident to Campbell . Campbell was interviewed and eventually he admitted to being present at the Lincoln County crimes, though he denied entering the trailer or shooting anyone . His statements, and further investigation, led to arrest of the other codefendants . On April 18, 2008, a juvenile complaint was filed charging Campbell, then 23 years-old, with two counts of murder and two counts of first-degree assault in connection with the events of February 1, 2002 . The Commonwealth moved to transfer the case to circuit court pursuant to KRS 635 .020(2), and Campbell, at the same time, filed a motion to waive his right to a transfer hearing . Lincoln District Court accordingly, pursuant to Campbell's request, granted transfer for trial of Campbell as an adult without conducting a transfer hearing . On July 26, 2008, Campbell was indicted for two counts of murder, two counts of attempted murder, two counts of first-degree robbery, and one count of first-degree burglary. Trial was held in May 2009 . 2 At the conclusion of the evidence the jury found Campbell guilty of one count of intentional murder as to Shangraw ; one count of wanton murder as to Upton ; two counts of first-

2 Campbell's trial was severed from all other codefendants' trials, and he was tried first.

degree wanton endangerment as to Wilder and Strunk; two counts of firstdegree robbery; and one count of first degree burglary. As a result of these convictions, the trial court entered judgment sentencing him to a total term of life without the possibility of parole for twenty-five years . This appeal followed . II . CAMPBELL'S DNA WAS PROPERLY OBTAINED AND STORED IN THE NATIONAL DATABASE Campbell first argues that the DNA sample taken from him at the Madison County jail in 2006 was unlawfully obtained without a warrant or consent ; was taken in violation of prescribed medical protocols designed to insure the integrity of the sample ; and was then impermissibly uploaded into CODIS without any statutory authority for doing so . As previously discussed, following the commission of the crimes at Shangraw's trailer, the police recovered a bandanna, tested it for DNA, and loaded that DNA into the CODIS database . In due course, the unknown 2002 sample from the bandanna was matched with Campbell's known 2006 sample taken at the Madison County jail. Campbell filed a motion seeking to suppress the DNA match, arguing that the taking of the 2006 sample "was performed in violation of KRS 17 .170 . and 502 KAR 32 :010 which require that a DNA sample . . . be obtained in a medically approved manner by [medically trained personnel] ." He later expanded his argument to allege that the 2006 sample was obtained pursuant

to a warrantless seizure in violation of the Fourth Amendment, and that the sample was uploaded into CODIS without statutory authorization .3 At a hearing held on February 27, 2009, the Commonwealth argued that the 2006 DNA sample was properly taken and properly loaded into CODIS. Defense counsel argued otherwise, noting that his "argument is stated in the record ." Campbell's counsel observed, "We do not have all the information on that [obtaining the 2006 DNA sample] without a hearing ." However, Campbell did not seek to call any witnesses to further develop the circumstances surrounding the taking of the 2006 sample, nor did he request a continuance to allow him to present additional evidence on the issue.4 The trial court addressed the DNA suppression issue as follows: A "buccal swabbing" of the Defendant occurred in 2006 . At the time of the swabbing, Defendant was being detained by law enforcement in another county for a matter completely unrelated to the charges here, and where he ultimately pleaded guilty to the underlying charges there. Moreover, the DNA sample from the buccal swabbing was not taken as a result of Defendant being convicted of a sex crime or incest. The provisions regarding the taking of a DNA sample for all felonies only apples if the sample was taken as a result of a conviction for a felony committed after July 1, 2008 . Therefore, the provisions of KRS § 17 .170 do not apply here . 3 Campbell makes no objection to the entry of the bandanna DNA into the data base . 4 Campbell makes an allegation that "the Court erred by denying a hearing on [his] motion"; however, as noted, the trial court did convene a hearing per RCr 9 .78 on the motion and gave him an opportunity to argue his position . Campbell failed to present evidence, and the trial court is under no obligation to present evidence on his behalf. We construe the trial court's convening of the February 27, 2009, hearing as sufficient to comply with the hearing requirement contained in RCr 9.78 ("[i]f at any time before trial a defendant moves to suppress . . . the trial court shall conduct an evidentiary hearing outside the presence of the jury .") . Hunt v. Commonwealth, 304 S .W.3d 15, 27 (Ky. 2009) (RCr 9 .78 hearing requirement is mandatory) .

Further, the Court finds the maintenance and taking of buccal swabs and placement in the data bank are for the assistance of identifying perpetrators of crimes and the aid of law enforcement . There is no evidence the Defendant has attempted to avail himself of any opportunity to purge or expunge from CODIS his DNA information, which was taken in the unrelated case where he accepted responsibility by pleading guilty and thereby acknowledging the sample as his. It is entirely consistent with the intent of KRS § 17 .170 that the Defendant was identified as potentially linked to this crime through DNA testing . And, should KRS § 17 .170 apply in this case, the Court still finds that the taking and maintenance of the sample were afforded the minimum amount of scrutiny necessary for admissibility . In no way was the taking of the sample, in an unrelated case, an unreasonable encroachment upon the rights of the Defendant in this case . Accordingly, in as much as the statute cited by the Defendant does not apply to the facts and circumstances regarding the buccal swab in this case, Defendant's Motion to Suppress is OVERRULED . We now review Campbell's two arguments regarding the DNA sample : 1) the actual taking of the 2006 sample at the Madison County jail ; and 2) the loading of the DNA data into CODIS . 1 . The Taking of the 2006 sample . Campbell contends that the 2006 DNA sample was taken without a warrant and without his consent, and that it was obtained without compliance with the applicable medical and evidentiary protocols contained in 502 KAR 32 :010 . However, because of Campbell's failure to present evidence during the February 27, 2009 hearing, the record contains no evidence from which we can determine whether the sample was obtained by consent, or by warrant, or if either consent or a warrant was necessary under the circumstances . Nor, do

we find any testimony concerning the medical procedures surrounding the taking of the sample . In summary, there is nothing for us to review except the parties' competing arguments . The trial court complied with its duty to afford Campbell a hearing on the issue,-5 and having failed to present evidence to support his position, he cannot now complain that there is an insufficient evidentiary basis for us to properly review his allegations . See Commonwealth v. Jones, 217 S .W .3d 190, 193-194 (Ky. 2006) (Defendant waived for appellate review any error that resulted from trial court's failure to permit him to introduce evidence in support of his motion to suppress, where defendant failed to claim error resulting from such failure, stipulated that the police officer would testify in accordance with his written report, and made no objection to the adequacy of the proceedings .) . Therefore, we are constrained to conclude that Campbell has waived these issues, id. at 194, and that the 2006 DNA sample was obtained properly and in accordance with required medical integrity protocols . 2. The Uploading ofthe Sample into CODIS.

Campbell next argues that "[e]ven if the swab was properly obtained, the results of the 2006 DNA testing by the [Kentucky State Police] lab were improperly uploaded to the DNA database which is established by KRS 17 .170

5 In connection with this argument Campbell states "at a minimum, the Court erred by denying a hearing on the motion" ; however, as noted, the trial court did convene a hearing on the motion, but it was Campbell who failed to introduce any evidence in support ofhis position . Contrary to the implication of this claim, the trial court did not "deny" Campbell a hearing or refuse to allow him to present evidence or testimony at the February 27, 2009, hearing.

since that sample did not fit any of the categories which may be uploaded to the database ." The present version of KRS 17 .170 broadly provides for the collection of DNA samples, allowing, for example, for the collection of a DNA sample from "[a]ny person convicted on or after March 27, 2009, of a felony offense under the Kentucky Revised Statutes[ .]" However, the version of the statute in effect when the DNA sample was taken from Campbell in 2006 was far more limited, providing for samples to be taken and uploaded only in the case of sex offenses under KRS Chapter 510 or certain other crimes (which did not include the possession of cocaine) . 6 Campbell contends that because a person in his circumstances was not specified under the then current version of KRS 17 .170 for the uploading of a DNA sample into CODIS, his sample was improperly loaded into the system. Again, our review of this issue is hindered because the record does not include the details surrounding the uploading of the 2006 sample into the CODIS database . Nevertheless, even if the entry of the sample into the database was flawed, the trial court properly denied suppression of the DNA evidence. In Johnson v. Commonwealth, 327 S .W .3d 501 (Ky. 2010), the defendant in that case similarly contended that entry of his DNA profile into the CODIS database was illegal because he had never been convicted of an offense requiring the DNA profile be entered . Id. at 509. While we noted that 6

For a concise discussion of the evolution of the statutory authorization for the taking of a DNA sample under KRS Chapter 17 see Petitioner F v. Brown, 306 S .W.3d 80 (Ky. 2010) .

Johnson had failed to present evidence that any DNA profile identified as his was posted on CODIS in violation of the statute, we held that "[e]ven if such had occurred, this would amount to at most a statutory violation and not a constitutional violation and, thus, would . not entitle him to suppression [of the DNA evidence] ." Id. at 511 (citing Saylor v. Commonwealth, 144 S .W .3d 812, 817 (Ky. 2004) (holding that the exclusionary rule only requires exclusion of evidence obtained in violation of constitutional rights and that exclusion of evidence obtained in violation of statutory rights is not necessarily required)) . Applying this principle, even if under the particular circumstances of his case, the applicable version of KRS 17 .170 did not authorize the uploading of his DNA sample, Campbell would not have been entitled to suppression of the DNA evidence for this statutory violation . It follows that the trial court did not err by denying Campbell's motion to suppress the DNA evidence upon the grounds stated. III . CAMPBELL PROPERLY WAIVED HIS RIGHT TO A TRANSFER HEARING Campbell next argues that his conviction should be vacated because his waiver of his right to a juvenile transfer hearing was invalid . This case began with the filing of a Juvenile Complaint on April 18, 2008, in Lincoln District Court pursuant to KRS 610.020 and KRS 620 .070 alleging two counts of murder and two counts of first-degree assault. Also at this time, a warrant for Campbell's arrest on the charges was issued. On April 22, 2008, the Commonwealth filed a motion to try Campbell as

an adult (i .e ., as a Youthful Offender) and to transfer his case to Lincoln Circuit Court pursuant to KRS 635.020(2) and 640.010(2) . As part of this motion the Commonwealth requested that the Lincoln District Court " . . . hold a preliminary hearing in this matter to determine if this child should be transferred to the Lincoln Circuit Court as a Youthful Offender." In the meantime, however, Campbell filed a motion captioned "Motion to Waive Transfer Hearing" seeking "to waive his proposed transfer hearing pursuant to Humphrey v. Commonwealth, 153 S .W.3d 854 (Ky . App. 2004) ." The motion acknowledged that Campbell "realizes that due to his age and the level of his charges he qualifies to be transferred [to circuit court] pursuant to KRS 635 .020(2) ." The motion further stated, "[t]hat his motion to waive the transfer hearing is done knowingly, intelligently and voluntarily and the juvenile realizes that by waiving the transfer hearing he will be tried as an adult ." The motion was signed by Campbell and his attorney. Campbell appeared in district court on April 22, 2008, at which time he entered a plea of not guilty to the charges contained in the Juvenile Complaint. The discussion then turned to the transfer issue . The prosecutor referred to the transfer motion that the Commonwealth had filed and Campbell's associated right to a hearing . The prosecutor then stated that he understood that Campbell was waiving his right to a hearing, but "if not [the Commonwealth] would request a date (for the hearing]." Campbell's attorney referred to the waiver motion and explained that she had gone over the motion

with Campbell and that he had agreed to the waiver . Counsel stated that Campbell understood that by waiving his transfer hearing he could be tried as an adult without a hearing . The court then asked Campbell, "Mr. Campbell do you understand that sir?" Campbell answered, "yes sir." The court then asked Campbell, "is your attorney correct, you're wanting to waive any such transfer hearing and understand that the matter [will] be transferred up to the circuit court where you could be tried as an adult?" Campbell again answered, "yes sir." Notwithstanding the motion for waiver and the in-court representations of counsel and Campbell himself, he now contends that there is insufficient evidence that his right to a hearing was knowingly and voluntarily waived, and that his convictions are therefore invalid because the circuit court never obtained jurisdiction over his case .? The Commonwealth contends that the record establishes that there was a valid waiver of Campbell's right to a juvenile transfer hearing . Both Campbell and the Commonwealth cite Humphrey in support of their respective positions . "The import of a child being transferred from district court to circuit court is that the child loses the greater procedural protections and provisions of the juvenile justice system and is held for trial under adult procedures ." Humphrey, 153 S .W .3d at 857 . Humphrey squarely held that a 7 After transfer to the circuit court Campbell filed a motion to dismiss the indictment based on lack of jurisdiction because his waiver of the juvenile transfer hearing was invalid . The circuit court denied the motion, stating, "after review of that process and associated filings, and in consideration of the totality of the circumstances surrounding the waiver, this Court finds the Defendant's waiver of hearing to be valid and sufficiently informed."

child could waive his right to a transfer hearing because the provisions of KRS 600 .010(2)([g]) provide that the "protections [of KRS Chapters 600 to 645, the Kentucky Unified Juvenile Code] belong to the child individually and may not be waived by any other party," and thus the Code specifically anticipates such waivers . Id. Nevertheless, a waiver is the voluntary relinquishment of a known right. See Herndon v. Wingo, 404 S .W.2d 453, 455 (Ky. 1966) . "Thus, in order for there to be a valid waiver of [a juvenile's] right to a preliminary hearing to determine if his case should be transferred to circuit court, there must be proof that [the juvenile] voluntarily gave up a right that he knew he had ." Humphrey at 858. With this principle in mind, Humphrey held "that the court must inform the child of the right to the preliminary hearing and ensure that the waiver of this right is voluntarily, knowingly and intelligently made ." Id. In summary, the record must demonstrate that the juvenile is aware of the consequences of his decision to forego a transfer hearing . In addition, Humphrey mandates that the factors contained in KRS 640.010(2)(b)8 must be

8 KRS 640 .010(2)(b) provides as follows: "(b) If the District Court determines probable cause exists, the court shall consider the following factors before determining whether the child's case shall be transferred to the Circuit Court : 1 . The seriousness of the alleged offense ; 2. Whether the offense was against persons or property, with greater weight being given to offenses against persons; 3. The maturity of the child as determined by his environment ; 4 . The child's prior record ; 5 . The best interest of the child and community; 6 . The prospects of adequate protection of the public ; 7. The likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile justice system ; and 8 . Evidence of a child's participation in a gang.

addressed by the district court . Id. at 85.9 .9 It bears emphasis, however, that Humphrey expressly noted that an important consideration in its holding was "the fact[] that children require special considerations due to their intelligence and experience," and that heightened assurances are therefore necessary to ensure due process and fair treatment of the child so that he is not deprived of the special protections of the juvenile justice system. Id. at 859 . Thus fundamental to the holding in Humphrey is that both the crime and waiver of the transfer hearing occurred when the juvenile was under the age of eighteen. While we agree with the principles as stated by the Court of Appeals in Humphrey, we do not believe that they apply with the same vigor in the present case . Unlike the fifteen-year-old child in Humphrey, Campbell was a twenty three year old man at the time of his waiver proceedings . And further, by the time of the waiver, Campbell was familiar with the court system, having been convicted of several adult crimes in circuit court. Thus, Campbell and the juvenile in Humphrey are not similarly situated . In his signed motion, Campbell expressly stated that he "realizes that due to his age and the level of his charges he qualifies to be transferred pursuant to KRS 635 .020(2)," and that his "motion to waive the transfer hearing is done knowingly, intelligently and voluntarily and the juvenile

9

In this vein, the district court should assure itself that clear grounds for transfer appear in the record. Thus, a district court should in all cases undertake a review to assure itself that statutory grounds for transfer are present. In the present double-murder case, there clearly are such grounds .

realizes that by waiving the transfer hearing he will be tried as an adult ." At the waiver proceedings, Campbell's attorney stated to the court that she had gone over the motion with Campbell and ,that he had agreed to the waiver. The court then had Campbell verify that he understood what he signed and that he knew the case was to be transferred to circuit court. Upon our review of the totality of the circumstances, particularly given the representations of Campbell and his attorney to the court ; his age at the time of the waiver; his experience with the adult criminal justice system at the time of the waiver; and the fact that his motion for a waiver obviated the Commonwealth's specific request for a transfer hearing, we conclude that no due process violation occurred in the waiver of Campbell's right to a juvenile transfer hearing. IV. THE BURGLARY INSTRUCTION WAS ERRONEOUS, BUT THE ERROR WAS HARMLESS The first-degree burglary instruction attempted to provide that Campbell could be convicted under either a principal actor theory (if he entered the trailer) or a complicity theory (if he did not enter the trailer but aided and abetted those who did) . Campbell next contends that the complicity language of the instruction was defective because it failed to include a provision requiring the jury to find that Campbell aided and abetted others who entered the trailer . t o to

The Commonwealth correctly notes that the indictment was never amended to charge Campbell with burglary under a complicity theory . Because of our disposition of this issue we need not decide whether it was proper to instruct the jury under a complicity theory when the indictment had not been so amended .

The first-degree burglary instruction read as follows : You will find Jamarkos Campbell guilty of First-Degree Burglary under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following : A. That in this county on or about February 1, 2002, and before the finding of the Indictment herein, he and/or others entered or remained unlawfully in a dwelling, owned by Ryan Shangraw without the permission of Ryan Shangraw or any other person authorized to give such permission ; B . That in doing so, he knew he and/or others knew he (they) did not have such permission ; C . That he did so with the intention of committing a crime therein ; AND D . That when in effecting entry or while in the dwelling or in immediate flight therefrom, he used or threatened the use of a dangerous instrument, or is [sic] armed with a gun, against Ryan Shangraw, against Ryan Shangraw ; OR That in so doing, he is [sic] armed or others are [sic] armed with a gun. KRS 502 .020(1) provides, in relevant part, that a person is guilty of complicity to an "offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he . . . (b) [a]ids, counsels, or attempts to aid such person in planning or committing the offense . . . .") . Campbell correctly notes that the instruction given was defective because the instruction omitted the element that to be found guilty under a complicity theory he must have aided, counseled, or attempted to aid the principal actor(s)

in the burglary. Because of this omission, we agree with Campbell that the instruction was defective . The Commonwealth concedes the error . "[A]n erroneous jury instruction is presumed to be prejudicial ; and a party claiming such an error to be harmless bears the heavy burden of showing that no prejudice resulted from it." Sanders v. Commonwealth, 301 S .W.3d 497, 499 (Ky. 2010) (Use of defendant's prior conviction for possession of drug paraphernalia, second offense, as predicate offense to convict him of being a first-degree persistent felony offender was reversible error, even though there was also evidence of other, usable prior felony convictions) . We are convinced, however, that under the circumstances of this case, that any error was harmless . Central to this conclusion is that Campbell was convicted of the intentional murder of Shangraw as a principal, meaning the jury found, as theorized by the Commonwealth, that Campbell entered the trailer and personally shot Shangraw . In light of the jury's determination that Campbell entered the trailer and shot Shangraw, it is inconceivable that the jury found Campbell guilty under the complicity language of the burglary instruction rather than as a principal actor who entered into the trailer himself. We may therefore say "beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained ." Stewart v. Commonwealth, 306 S.W .3d 502, 508 (Ky. 2010) (Stating that constitutional harmless error standard applies to jury instruction error where element of crime is omitted) . Because we conclude that the error is harmless, Campbell is not entitled to relief as a

result of the deficient instruction . V . THE VOLUNTARY INTOXICATION INSTRUCTION WAS ERRONEOUS . BUT THE ERROR WAS HARMLESS Campbell next contends that the trial court erred by failing to give a voluntary intoxication instruction for the specific intent crimes of first-degree burglary' 1 and first-degree robbery . 12 Campbell concedes that this issue is not preserved but requests palpable error review . RCr 10 .26. KRS 501 .080 provides that: Intoxication is a defense to a criminal charge only if such condition either: (1) Negatives the existence of an element of the offense ; or (2) Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Thus, voluntary intoxication may be a defense where it negates "the existence of an element of an offense"- most often, the mens rea element . However, "voluntary intoxication does not negate culpability for a crime requiring a culpable mental state of wantonness or recklessness, but it does negate specific intent ." McGuire v. Commonwealth, 885 S .W .2d 931, 934 (Ky. 1994) . Accordingly, we have held that a voluntary intoxication instruction is warranted where, "from the evidence presented, a jury could reasonably conclude that the defendant was so intoxicated that he could not have formed 11

12

See KRS 511 .020 (requiring unlawful entry into a building "with the intent to

commit a crime") . See KRS 515.020 (requiring use of physical force "with intent to accomplish [a] theft") .

the requisite mens rea for the offense." Fredline v. Commonwealth, 241 S .W .3d 793, 797 (Ky. 2007) . However, this defense presents a high bar, because "there must be evidence not only that the defendant was drunk, but that [he] was so drunk that [he] did not know what [he] was doing." Springer v. Commonwealth, 998 S .W .2d 439, 451-52 (Ky. 1999) . Thus, "mere drunkenness will not raise the defense of intoxication ." Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002) . The failure to give a voluntary intoxication instruction on the burglary and robbery charges was apparently an oversight, because the instruction was included with the murder and first-degree manslaughter instructions, and for the attempted murder and second-degree assault instructions . 13 Because burglary and robbery are specific intent crimes, Campbell was entitled to a voluntary intoxication instruction on these charges . 14 See McGuire, 885 S .W.2d at 934 ("Voluntary intoxication negates specific intent .") . However, we are not persuaded that the trial court's failure to give a voluntary intoxication instruction resulted in palpable error. The jury rejected Campbell's voluntary intoxication defense by finding him guilty of the first-

13

14

It appears the present problem arose in part because the trial court embedded the voluntary intoxication instruction within each of these individual instructions rather than give a single, universal instruction as has been approved by this Court. See Slaven v. Commonwealth, 962 S .W .2d 845, 857 (Ky. 1997) ; Mabe v. Commonwealth, 884 S.W.2d 668, 672 (Ky. 1994) ; Brown v. Commonwealth, 575 S .W.2d 451, 452 (Setting forth model instruction) (Ky. 1978) ; Cooper's Kentucky Instructions to Juries, § 11 .30. The Commonwealth argues that there was insufficient evidence to have warranted a voluntary intoxication instruction on any of the charges . While there may be some merit to this argument, because of our disposition, we need not address this claim .

degree murder of Shangraw, instead of the lesser crime of second-degree manslaughter, which is the proper conviction for a murder under circumstances of voluntary intoxication . See Caudill v. Commonwealth, 120 S.W .3d 635, 669 (Ky . 2003) ("The defense of voluntary intoxication does not warrant an acquittal but reduces the offense from murder to second-degree manslaughter .") The jury having failed to find that Campbell was intoxicated to such a degree as to negate his intent in the shooting of Shangraw, it is not likely, if given the opportunity, they would have found him to have been so drunk as to negate his intent in relation to the burglary and robbery charges . Therefore, a substantial possibility does not exist that the result of the trial would have been different without the error, there was no manifest injustice, and, accordingly, Campbell is not entitled to relief under the palpable error standard. Brock v. Commonwealth, 947 S .W .2d 24, 28 (Ky. 1997) . VI . THE PROSECUTOR'S CLOSING ARGUMENTS WERE NOT IMPROPER Campbell next argues that he is entitled to relief because in his closing argument the prosecutor repeatedly impugned the character of defense counsel in violation of his constitutional right to a fair trial. He concedes this alleged error is not preserved, but requests palpable error review under RCr 10.26 . More specifically, Campbell alleges that the following comments by the prosecutor exceeded acceptable standards : 1 . The prosecutor stated that he would be talking about facts and evidence, and, "unlike [defense counsel], would not sit there and make things up or talk about things that are not true ." 2.

The prosecutor stated that "he would not try and mislead the

jury. 3. In criticizing possible alternative explanations of the facts raised by defense counsel, the prosecutor stated "he could sit there and make things up all day long." 4 . In reference to the attorney who had represented Campbell in the initial phase of the proceedings in discussions with the police and in juvenile court, the prosecutor stated that the attorney had helped Campbell to concoct a story and that he sat there listening to him lie to the police and tried to help him to "sell a story ." 5 . The prosecutor asked the jurors not to be like defense counsel "and blame everyone else ." 6. The prosecutor urged the jury to let defense counsel "know we're not stupid" and we "don't believe this crap ." In any consideration of alleged prosecutorial misconduct, particularly, as here, when the conduct occurred during closing argument, we must determine whether the conduct was of such an "egregious" nature as to deny the accused his constitutional right of due process of law. Donnelly v. DeChristoforo, 416 U .S . 637 (1974) . "Any consideration on appeal of alleged prosecutorial misconduct must center on the overall fairness of the trial . In order to justify reversal, the misconduct of the prosecutor must be so serious as to render the entire trial fundamentally unfair." Soto v. Commonwealth, 139 S .W.3d 827, 873 (Ky. 2004) . However, it is well established that prosecutors have wide latitude in their closing arguments, and may attempt to convince jurors that the matter before them should not be dealt with lightly, Brewer v. Commonwealth, 206 S.W .3d 343, 350 (Ky. 2006), which would include taking seriously the verity of the testimony and trial counsel's corresponding

comments. As stated by The United States Court of Appeals for the Sixth Circuit: For the prosecutor's misconduct to violate the defendant's due process rights, it is not enough that the prosecutors' remarks were undesirable or even universally condemned; instead those comments must so infect the trial with unfairness as to make the resulting conviction a denial of due process . The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor, because the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused . To succeed on this claim, the petitioner must demonstrate that the prosecutor's conduct was both improper and flagrant . Beuke v. Houk, 537 F .3d 618, 646 (6th Cir. 2008) (internal quotation marks, brackets, and citations omitted) . While we stop short of approving of the prosecutor's specific comments, it is clear that they were made for the purpose of portraying the alternative theories raised by defense counsel as false ; however, a prosecutor is. permitted to do this in his closing arguments . "A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position ." Slaughter v. Commonwealth, 744 S .W .2d 407, 412 (Ky. 1987) (where prosecutor accused trial counsel of pulling a "scam," and questioned the sharpness of counsel held to be "well within the proper bounds of a closing argument and certainly did not affect the outcome of the trial.") . Upon the whole, the comments here are not so much different than characterizing defense counsel's arguments as a scam, which we have previously held to be within the bounds of commenting upon unlikely defense theories . Id.

Upon consideration of the overall trial and the context in which the comments in question were made, we do not find a substantial possibility that the prosecutor's comments affected the overall fairness of the proceedings. Thus, we decline to find that the comments rise to the level of palpable error. Brock, 947 S .W.2d at 28 .

VII . CAMPBELL'S PRIOR ADULT CONVICTIONS WERE PROPERLY INTRODUCED Campbell next contends that the trial court erred by permitting the Commonwealth to introduce three convictions he received after he had turned eighteen and, obviously, after the present crimes were committed . He argues that while the introduction of subsequent crimes may be proper in cases where the crimes being tried were committed as an adult, because Campbell was a juvenile when he committed the present crimes, the prior convictions are not admissible during the sentencing phase . We first note that KRS 532 .055(2)(a) 15 provides for the admission of prior offenses during the sentencing phase, and, in fact, even for the admission of juvenile records . In Templeman v. Commonwealth, 785 S .W.2d 259 (Ky. 1990), a death penalty case, we stated : We are persuaded by the rationale of the Florida Supreme Court in Ruffin v. State, Fla., 397 So.2d 277 (1981), (overruled on other grounds) which stated in part that a defendant may have committed a murder for which he is not apprehended until many years later and during the course of those years may have a 15

KRS 532.055 was held unconstitutional on other grounds in Manns v. Commonwealth, 80 S.W.3d 439 (2002) .

significant criminal history. Consequently, the trial judge was correct in allowing the prosecution to introduce evidence of prior criminal convictions which occurred subsequent to the commission of the crime . The term prior is the status of the defendant at the time of sentencing, not at the time of the commission of the charged crime. The purpose of K.R .S . 532 .025 is to allow evidence of all relevant and pertinent information so that the jury can make an informed decision concerning the appropriate sentence in a particular case . The jury should not sentence in a vacuum without knowledge of the past criminal record or other pertinent matters necessary to assess an appropriate penalty . Commonwealth v. Reneer, Ky ., 734 S .W.2d 794 (1987) ; Francis v. Commonwealth, Ky., 752 S .W .2d 309 (1988) . While Templeman was considering prior convictions under KRS 532 .025 in the death penalty context, there is no reason to apply a more restrictive rule in a non-death penalty case . Nor is there any reason to suppose that a different rule should apply where the accused was a juvenile when he committed the underlying crime, especially in light of KRS 532 .055(6), which provides that even juvenile criminal records "shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult." Accordingly, we are persuaded that Templeman controls the result, and that the trial court properly admitted the prior convictions . VIII . CAMPBELL WAS ELIGIBLE TO BE SENTENCED TO LIFE WITHOUT PAROLE FOR TWENTY-FIVE YEARS Finally, citing to Roper v. Simmons, 543 U .S . 551 (U .S . 2005) and Graham v. Florida, 130 S .Ct . 2011 (2010), Campbell argues that he may not be sentenced to life without the possibility of parole for twenty-five years (LWOP 25) because the alleged crimes were committed while he was under the age of

eighteen. In Roper, the United States Supreme Court held that the execution of offenders who were under eighteen years of age at time their crimes were committed is prohibited by the Eighth and Fourteenth Amendments of the United States Constitution . Roper, 543 U .S . at 579 (abrogating Stanford v. Kentucky, 492 U.S. 361 (1989)) . In Graham, the United States Supreme Court held that the Eighth Amendment prohibits imposition of a sentence of life without the possibility of parole on a juvenile offender who did not commit a homicide . Id. at 2034 . Campbell's reliance on Roper and Graham is misplaced . Roper addressed the execution of a juvenile offender and thus has no applicability to the constitutionality of a sentence of LWOP 25 . Indeed, Roper would permit a juvenile offender to be sentenced to life without the possibility of parole for a murder conviction - a sentence greater than that imposed on Campbell . Roper, 543 U.S . at 572 ("To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.") Similarly, Graham was limited to addressing the issue of life without the possibility of parole for a noncapital crime, "The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide . A State need not guarantee the offender eventual release,

but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Graham, 130 S .Ct. at 2034 . A sentence of LWOP 25 falls comfortably within this holding, as it provides the juvenile with some realistic opportunity to obtain release before the end of his life sentence . 16 In summary, neither Roper nor Graham holds that a sentence of LWOP 25 is constitutionally impermissible . We further note that KRS 640.040(1) provides as follows : No youthful offender who has been convicted of a capital offense who was under the age of sixteen (16) years at the time of the commission of the offense shall be sentenced to capital punishment . A youthful offender may be sentenced to capital punishment if he was sixteen (16) years of age or older at the time of the commission of the offense . A youthful offender convicted of a capital offense regardless of age may be sentenced to a term of imprisonment appropriate for one who has committed a Class A felony and may be sentenced to life imprisonment without benefit of parole for twenty-five (25) years . (Emphasis added) . Thus our legislature .has specifically authorized LWOP 25 as a proper sentence for a youthful offender . Campbell also argues that LWOP 25 is an improper sentence because it is categorized under KRS 532 .025 for heightened scrutiny, 17 like death penalty sentencing, thereby bringing it within the orbit of Roper and Graham. For the 16

Moreover, Graham dealt with non-homicide crimes, whereas the present case involves a double-murder .

17 See, e.g., KRS 532 .025(3) ("In all cases unless at least one (1) of the statutory aggravating circumstances enumerated in subsection (2) of this section is so found, the death penalty, or imprisonment for life without benefit of probation or parole, or the sentence to imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall not be imposed.")

reasons already discussed, however, this argument is unpersuasive . Neither Roper nor Graham holds that a state's requirement that LWOP 25 be scrutinized under the same standard as the death penalty converts an otherwise constitutional sentence into an unconstitutional sentence . In summary, we hold that there is no constitutional or statutory bar to imposing a sentence, under the circumstances we address, of LWOP 25 upon an offender who committed the underlying crime when he was under the age of eighteen . IX. CONCLUSION For the foregoing reasons, the judgment of the Lincoln Circuit Court is affirmed. All sitting. All concur. COUNSEL FOR APPELLANT : Timothy G. Arnold La Mer Kyle-Griffiths Department of Public Advocacy Post Trial Division 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General Joshua D . Farley Assistant Attorney General Attorney General's Office Office of Criminal Appeals 1024 Capital Center Drive Frankfort, Kentucky 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION .

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

~P~tfixx.~~rr

6*ixyrrmP Courf of 2009-SC-000516-MR

AARON JAMES WHALEY

V

APPELLANT

ON APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, JUDGE NOS . 07-CR-00002 AND 09-CR-00056

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Aaron Whaley appeals as a matter of rights from a circuit court judgment convicting him of two counts of murder and other offenses 2 and sentencing him to life imprisonment . 3 All allegations of error raised by Whaley concern the

Ky. Const . § 110(2)(b) . 2

Whaley was also convicted of one count of fourth-degree assault, two counts of first-degree wanton endangerment, and of being a second-degree persistent felony offender.

3

Under the trial court's judgment, Whaley received a life sentence on the first murder count, a life sentence on the second murder count, twelve months on the fourth-degree assault count, and ten years' imprisonment each on the two counts of first-degree wanton endangerment . Although the judgment did not specify whether the sentences were to run consecutively or concurrently, our precedent holds that no other sentence can run consecutively to a life sentence imposed by the same judgment. See Winstead v. Commonwealth, 327 S.W.3d 386, 389 n .4 (Ky . 2010), quoting Bedell v. Commonwealth, 870 S.W .2d 779, 783 (Ky. 1993) (vacating sentence where trial court ordered other sentences from same judgment to run consecutively to life without parole sentence because "no sentence can be

trial court's rulings on evidentiary matters that arose during the trial . Such evidentiary rulings are subject to an abuse of discretion standard of review.4 Finding no abuse of discretion in the trial court's rulings, we affirm. I. FACTUAL AND PROCEDURAL HISTORY. The criminal complaint alleged that Whaley shot and killed D'Oliver Coleman, shot and wounded Marcus Harris, and shot and killed K. C . Torian 5 - all on the same day. The indictment charged Whaley with two counts of murder and three counts of attempted murder, the latter of which were later amended to assault and wanton endangerment . The case proceeded to a jury trial in which Whaley raised defenses, including the self-protection privilege and extreme emotional disturbance . Whaley claims in this appeal that the trial court's judgment must be reversed because the trial court erroneously 1)

allowed witness Latasha Smith to testify that Whaley made

incriminating statements to her that were not disclosed before trial; 2)

prohibited cross-examination of Smith about why no one else knew

before trial Whaley made these incriminating statements ; 3)

prohibited a witness from offering his opinion about whether

Whaley acted in self-defense when he shot Torian ; and ordered to run consecutively with such a life sentence in any case, capital or noncapital.") . 4 5

Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky . 2007) .

The record and briefs sometimes refer to this victim as K. C . Torian and other times, K . C . Torain.

4)

prohibited questioning of Marcus Harris about Torian's habit of

carrying a gun . II. ANALYSIS. A. Trial Court Did Not Abuse Discretion in Allowing Smith to Testify to Whaley's Incriminating Statements Because the Trial Court Reasonably Found No Discovery Violation . Whaley contends that his convictions must be reversed, alleging that the trial court erred in permitting Latasha Smith to testify that Whaley made incriminating statements on the day of the shooting incidents . The Commonwealth called Latasha Smith to testify. She was the mother of K. C . Torian's child. Conflict apparently arose between Whaley and Torian because of rumors that Smith was in a romantic relationship with Whaley or Whaley's friend, Stafford Winston, or both of them. Rumors also suggested that Whaley, Winston, or both of them, burned down Torian's house . There was also some evidence that Torian threatened Whaley and Winston and may have "put a hit out on them ." On direct examination by the Commonwealth, Smith testified Whaley and Winston phoned her on the day the shooting incidents occurred . A defense objection resulted in a bench conference, which moved into the judge's chambers to discuss further whether Smith would be allowed to testify concerning the contents of that phone call. In chambers, the trial court asked Smith what she was going to say. She replied that Stafford Winston called her, but Whaley took the phone from Winston and told her to get Torian over to her house and said he would shoot 3

Torian in front of her. She also said that Whaley stated, "I'll come over and shoot up First Street." After Smith was excused from chambers, defense counsel told the trial court he had not heard any of these statements before . Defense counsel described these statements as "excruciatingly incriminating." Defense counsel advised the trial court he was not prepared to defend against these statements, and he might have conducted the defense differently if he had been aware of the statements . Defense counsel then requested a mistrial . In response, the prosecutor admitted to having spoken to Smith about a week before trial . And she recalled Smith saying something about shooting up First Street, although she did not remember that statement being attributed to Whaley . The trial court asked the prosecutor why the statement would have been brought up without being attributed to someone. The prosecutor explained that Smith's recitation of events tended to be a rant that jumped from subject to subject, making her story difficult to follow . Defense counsel indicated that Smith's recounting of Whaley's alleged statements might have affected whether Whaley chose to go to trial. The trial court noted that the defense was aware that Smith would testify and could have talked to her before trial. At the conclusion of the in-chambers conference, the trial court allowed the defense an extra thirty minutes during the lunch recess to decide how to respond to Smith's proffered testimony . Although the trial court stated it did

not see a discovery violation, it noted that defense could renew its motion for mistrial after lunch . A lunch break followed this discussion . After lunch, defense counsel requested that Whaley's alleged oral incriminating statements be excluded under the discovery rules and argued that the prosecutor's claim of not knowing about the statements was not credible . The prosecutor stated she reviewed Smith's statements on file and noted that Whaley's threatening statements were not in her interview or other statements. The trial court denied the defense motion to exclude Smith's testimony, stating that the prosecutor was not at fault for failing to disclose the statements before trial because she was unaware of them . The trial court also stated that undue surprise was not grounds for a mistrial, noted that defense counsel declined to press the mistrial motion at that point, and noted its belief that the extension of the lunch hour was a sufficient remedy for dealing with the unanticipated incriminating statements . Smith then resumed her testimony before the jury. She testified that Whaley and Stafford Winston called her back after trying to contact Torian . Stafford Winston placed the call to Smith, but Whaley took the phone from Winston . Smith recounted that Whaley told her to summon Torian to her house where he would kill Torian in front of her. She also testified to Whaley telling her he would come over and shoot up First Street. On cross-examination, defense counsel asked Smith whether she told police or the prosecutor before trial about Whaley's threatening statements . At

first, Smith was not sure she had because she claimed simply to have answered police questions . But upon further questioning, she stated she told police about the threatening statements . She noted she talked to police on two different occasions, but she did not know if her recounting of Whaley's threatening statements was recorded by police . She also stated she talked to the prosecutor about the threatening statements . A second in-chambers conference ensued . This time, defense counsel requested the charges against Whaley be dismissed with prejudice . The prosecutor noted defense counsel also had access to police interviews and recorded statements before trial. And the prosecutor reiterated that although she remembered Smith talking about a threat to shoot up First Street, she was not aware this threat was attributed to Whaley, and she did not try purposefully to hide anything. Despite defense counsel's pleas of feeling ambushed, the trial court denied the motion to dismiss and found no discovery violation occurred because the trial court found the prosecutor's explanation acceptable . The trial court remarked that many witnesses in the case had been somewhat uncooperative . The trial court also recalled Chestnut v. Commonwealth6 and its holding that a failure to disclose oral incriminating statements could support a prosecutorial misconduct claim where the statements were known to police

6

250 S.W.3d 288 (Ky. 2008) .

before trial . But the trial court believed that Chestnut was distinguishable because the detective in Chestnut was previously aware of the statements . To make sure the Chestnut distinction applied to the instant facts, the trial court called an investigating law enforcement officer to chambers and questioned the officer under oath about his foreknowledge of Whaley's threatening statements . The officer stated he did not ask Smith about any specific conversations because his investigation focused on finding out who committed the murders and not on why the murders were committed . The trial court then stated that Smith's testimony would resume, and the parties could question another investigating officer later . Cross-examination then continued with defense counsel asking Smith why no one else heard about Whaley's statements before trial. The prosecutor objected on the basis that the question required speculation. The trial court sustained the objection . So Smith did not answer . Defense counsel then asked Smith if she relayed Whaley's threats to Torian . She answered that she did. On re-direct examination, the prosecutor then asked Smith if she told police everything she knew when she spoke to police . Smith replied she could not recall . Following Smith's testimony before the jury, the trial court questioned the other investigating officer in chambers . This officer stated that Smith was the first witness he spoke to and that she was excited . He remembered her See id. at 296-97 .

saying Whaley and Winston called her earlier that day requesting Torian's phone number and acting crazy . But he did not remember her quoting anyone specifically . He admitted not writing down everything she said and noted she tended to ramble and to describe events out of chronological order . He did not recall her telling him about the alleged threatening statements by Whaley . Following this discussion, the trial court repeated its refusal to dismiss the charges and declined to find prosecutorial misconduct . But it suggested defense counsel could argue in closing Smith's failure to disclose the threats suggested that she had fabricated them . The trial court also observed defense counsel had effectively discredited Smith . 'But the trial court ultimately denied the request to exclude the statements . We generally review trial courts' rulings on alleged discovery violations for abuse of discretion.$ And when the trial court must weigh the credibility of representations made by parties and witnesses in determining whether a discovery violation occurred at all, this determination should be entitled to great deference .9 With this in mind, we conclude that no reversible error arose from the trial court's allowing Smith to testify that Whaley made oral incriminating statements to her. In view of the arguments and representations

s 9

See Penman v. Commonwealth, 194 S.W.3d 237, 249 (Ky. 2006), overruled on other grounds by Rose v. Commonwealth, 322 S .W .3d 76, 79 (Ky. 2010) . See generally Moore v. Assente, 110 S .W.3d 336, 353-54 (Ky. 2003) (recognizing

trial court's findings of facts, particularly determinations of witness credibility and weighing evidence, may not be disturbed unless they are clearly erroneous and not supported by substantial evidence) .

made by the parties, we conclude that the trial court did not abuse its discretion in allowing this testimony . Upon request for discovery, a prosecutor has a duty to disclose any oral incriminating statements made by the defendant to a witness if the prosecutor is aware of such statements . Kentucky Rules of Criminal Procedure (RCr) 7 .24(1) requires that: "Upon written request by the defense, the attorney for the Commonwealth shall disclose the substance, including time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness . . . ."lo Here, the prosecutor represented to the trial court she was unaware Smith claimed that Whaley made incriminating statements to Smith . And although Smith's testimony indicates Smith believed she communicated Whaley's incriminating statements to the prosecutor and police, Whaley does not point to any other evidence of record that the prosecutor or police were aware of the incriminating statements allegedly made by Whaley to Smith . So the trial court simply had to resolve whether the prosecutor's and police officers' claims of being unaware of the statements were credible . The trial court's finding that police and prosecutors were unaware of the statements is supported by substantial evidence," so we cannot disturb this finding . Emphasis added. Although the prosecutor did not technically testify and was not placed under oath, she had a duty to speak truthfully to the trial court, see Kentucky Supreme Court Rules (SCR) 3 .130(3 .3)(a)(1), and we believe the trial court could properly consider her unsworn representations about whether she knew of such statements . Furthermore, the police officers' testimony was evidence that police did not know of the statement; and the trial court could also consider Smith's testimony in which 9

Because we cannot disturb the finding of no discovery violation, we cannot conclude the trial court was required to take any action under our discovery rules . 12 Specifically, we do not believe the trial court was required to exclude the evidence or grant other relief such as a mistrial13 under the discovery rules where there was no discovery violation . The trial court appropriately allowed extra time during the lunch break to allow defense counsel to deal with this unexpected trial development, but the trial court was not required to grant any other relief under our discovery rules . The trial court did not abuse its discretion in admitting the evidence . 14 So we affirm the trial court's ruling on this issue .

Smith admitted to at least some uncertainty as to whether she told police of the statements although she believed she told police and the prosecutor about the statements . 12

See Kentucky Rules of Criminal Procedure (RCr) 7.24(9) (stating that if a party fails to comply with discovery rules, the trial court may take appropriate action to remedy such discovery violations, such as excluding evidence, granting a continuance, or permitting inspection of previously undisclosed evidence) .

13

A mistrial may only be granted upon a showing of "manifest necessity," and a trial court's ruling on a mistrial motion is reviewed for abuse of discretion . Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. .2009) . In light of the trial court's reasonable determination that there was no discovery violation and the lack of other assertions justifying a mistrial, we believe the trial court did not abuse its discretion in not granting a mistrial.

14

Because we find no error in the trial court's admission of this evidence, we need not reach the Commonwealth's argument that any error was rendered harmless because of another witness (Brittany Caldwell) testifying to similar threats allegedly made by Whaley. We note Whaley contends Caldwell's testimony was not credible for various reasons, such as her intoxication during the night of the criminal incident . We express no opinion on the credibility of her testimony but simply note that the jury, as fact-finder, determined which witnesses it found credible; and an appellate court should not substitute its judgment on this matter . Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994) . 10

B . Trial Court Did Not Abuse Discretion in Not Requiring Smith to Answer Question About Why No One Else Knew of Alleged Threats Because this was Outside Smith's Personal Knowledge . Whaley contends the trial court erred by not allowing Smith to be crossexamined about why no one else knew of the oral incriminating statements Whaley allegedly made to her . We conclude the trial court properly sustained the Commonwealth's objection on grounds of speculation . Obviously, Smith would not have personal knowledge of why the prosecutor and police did not know of any such oral incriminating statements made to her. 1 s Defense counsel did ask Smith whether she told the prosecutor and police about the statements, a matter within her personal knowledge ; and she responded to these inquiries with some equivocation, at least as to whether she told police . So defense counsel was effectively allowed to cast doubt on the creditability of Smith's testimony that Whaley made incriminating statements to her. In short, we find no abuse of discretion in the trial court's handling of this matter. KRE 602 forbids allowing witnesses to testify on matters outside their personal knowledge . And Whaley was able to suggest that perhaps Smith failed to tell anyone else of the threats without Smith being required to speculate on matters outside her personal knowledge .

is

See KRE 602 (prohibiting witnesses from testifying on matters outside their personal knowledge) .

C. Trial Court Did Not Abuse Discretion in Not Allowing Manning to Offer Opinion Concerning Whether Whaley Was Acting in Self-Defense When He Killed Torian. Whaley argues the trial court abused its discretion by not allowing witness Jewell Manning to offer an opinion about whether Whaley was acting in self-defense when Whaley shot Torian . The Commonwealth counters that "[a]lthough KRE 701 allows a witness to testify in the form of an opinion or inference, it does not allow a lay witness to give conclusions on questions of law." Whaley responds that defense counsel did not request a legal conclusion but simply sought the witness's impression of the facts : He did not read the self-protection statute and ask Mr. Manning to apply the facts of [Whaley's] case to the rule of law. Rather, [] defense counsel simply wanted to know if Mr. Manning thought [Whaley] was acting in a way to protect himself from a threatening situation . Mr . Manning personally observed the entire situation and should have been allowed to offer his lay opinion from a lay person's perspective of whether [Whaley] was trying to protect himself. Despite Whaley's argument, we believe the trial court properly sustained an objection to the inquiry about whether Whaley acted in self-defense in shooting Torian . 16 Although perhaps defense counsel intended to ask the witness about his fact-based impressions of whether Whaley might have perceived a threat from Torian rather than intending to elicit a legal opinion 16

Whaley argues KRE 701 (permitting lay opinion testimony if certain requirements are met) is inclusionary in nature . But we do not believe lay witness testimony reaching conclusions of law is proper under KRE 701, which requires such lay opinion testimony not be based on specialized knowledge to be admissible . Properly reaching a legal conclusion generally requires specialized knowledge from legal training . 12

that Whaley's action was actually privileged under the law, we believe the question, as actually framed, could reasonably be interpreted as asking for a legal conclusion . And it is improper for a lay witness to testify to conclusions on questions of law.l 7 So we find no abuse of discretion in the trial court's not allowing the question to be answered . D . Because Trial Court Held Testimony Concerning Torian's Habit of Carrying a Gun was Admissible, Trial Court is Not Responsible for Whaley's Failure to Proffer Such Habit Evidence at Trial . Whaley contends the trial court improperly denied his request to offer testimony from Marcus Harris 18 that Torian was in the habit of carrying a gun . The issue arose when defense counsel asked Harris on cross-examination whether Torian had a reputation for violence . Harris replied in the affirmative . Defense counsel then asked what the reputation was, and the Commonwealth objected. At the bench conference, the trial court indicated the proper question was whether someone had a reputation for peacefulness, not violence . The trial court stated that if the answer was no, the subject could be further pursued . Defense counsel offered to withdraw the question and ask another, but the trial court noted the question about reputation for violence had already been asked and answered . 17

18

S.W .2d 13, 32 (Ky . 1998) (noting "a witness generally cannot testify to conclusions of law" when describing how trial court sustained objection to question asking testifying detective whether defendant had committed certain criminal offenses before defense counsel reframed question as to whether defendant had been charged with certain offenses) . See Tamme v. Commonwealth, 973

Whaley fired shots into a vehicle with Harris and other occupants in it, and Harris was hit. The jury convicted Whaley of fourth-degree assault of Harris . 13

The trial court then asked where defense counsel intended to go with Harris's testimony . Defense counsel stated he believed Harris would testify that Torian habitually carried a gun, although he was not sure what Harris would say . Although the trial court indicated doubt that the evidence was admissible at that point, the trial court stated it did not want to make a decision "on the fly" and requested the parties research this issue for later resolution . Later, the trial court resumed discussing with the parties whether such habit evidence should be admitted under KRE 406. Defense counsel argued it should, citing federal cases in support. Defense counsel noted a lack of precedent from Kentucky state courts applying KRE 406, enacted just two or three years before trial, 19 to charging Kentucky law prohibiting the admission of such habit evidence . 20 After some discussion of how habit evidence differs from character evidence, the trial court stated that Harris should be brought into chambers to present testimony outside the hearing of the jury to allow the trial court to rule 19

The trial took place in February of 2009. KRE 406 was adopted effective July 1, 2006 .

20

See Comment to KRE 406 ("Rule 406 changes Kentucky law. The Supreme Court

[or its predecessor court] ruled repeatedly during the last century that evidence of habit could not be used to prove conduct in conformity with habit . See, e.g., Lexington R. Co. v. Herring, 96 S .W . 558 (Ky. 1906) ; Cincinnati, N.O. & T.P. Ry. Co. v. Hare's Adm'x, 178 S .W.2d 835 (Ky . 1944) . Recently, however, a majority of

the Court expressed the view that habit evidence should be admissible to prove conduct in conformity with habit, although a majority held that such evidence could not be admitted without explicit authorization for such in the Rules of Evidence . See Burchett v. Commonwealth, 98 S.W.3d 492 (Ky. 2003) . [KRE] 406 adopts the view of the Court's majority and brings Kentucky law into line with that of nearly all other states and the Federal Rules .") . 14

on allowing him to testify to such habit evidence before the jury. Defense counsel agreed to the hearing . The trial court wondered if Harris might also believe that Whaley was in the habit of carrying a gun . But the trial court stated it thought evidence of habit of carrying a gun was admissible "for both sides ." The trial court stated that if defense counsel presented evidence of Torian's habit of carrying a gun, the prosecution would also be allowed to present evidence that Whaley was also in the habit of carrying a gun. Although defense counsel told the trial court he believed Harris would testify that Torian was in the habit of carrying a gun, Whaley does not indicate where in the record defense counsel actually attempted to elicit this testimony from Harris . Yet, the trial court stated it thought such testimony, would be admissible, although it wanted such testimony proffered outside the hearing of the jury, a condition to which trial counsel agreed .21 Because the trial court ruled in Whaley's favor that properly presented testimony22 about Torian's habit of carrying a gun, we will not reverse based on a mistaken allegation of a contrary trial court ruling.

21

22

Perhaps the trial court's statement that it "thought" evidence of habit of carrying a gun was admissible could be construed as a less than definite ruling . But to the extent the trial court's ruling was indefinite or unclear, we believe Whaley failed to secure a more definite ruling and, thus, failed to preserve the issue for our review. Dillard v. Commonwealth, 995 S. W.2d 366, 371 (Ky . 1999) ("It is the duty of one who moves the trial court for relief to insist upon a ruling, and a failure to do so is regarded as a waiver.") . Although Whaley complains in his brief the trial court failed to call Harris in for a hearing on this matter, we believe Whaley should have requested such a hearing if he intended to proffer such testimony from Harris . The trial court and defense counsel agreed Harris should be questioned outside the presence of the jury before testifying about the victim's habit of carrying a gun, 15

III. CONCLUSION . For the foregoing reasons, the judgment of the trial court is affirmed . All sitting. Minton, C.J. ; Abramson, Cunningham, Noble, Schroder, and Scott, JJ ., concur. Venters, J ., dissents by separate opinion . VENTERS, J., DISSENTING : I respectfully dissent because the trial court's inappropriate response to Latasha Smith's "surprise" testimony was an abuse of discretion . The very existence of RCr 7 .24(l) and its inclusion of "oral incriminating statements" is testament to this Court's recognition that testimony alleging such statements is highly probative, often extremely prejudicial evidence, and that a fair trial requires that defense counsel have an adequate opportunity in advance of trial to investigate the veracity of such evidence, discover if there is evidence to rebut such testimony, and to prepare a defense accordingly . I take no issue with the trial court's finding that no prosecutorial misconduct was involved in the failure to disclose the statements . But the absence of prosecutorial misconduct does not automatically make the new found evidence admissible. I accept the trial court's finding that the Commonwealth, despite the numerous conversations Smith had with the prosecutor and police officers, had no prior knowledge of the statements and, therefore, breached no discovery rule . But the trial court then incredibly concluded that if defense counsel had wanted to know how Smith would apparently to ensure Harris had personal knowledge of the issue and would, in fact, testify Torian had such a habit of carrying a gun. 16

testify, he should have talked to her before the trial. Are we actually expected to believe that defense counsel should have learned from the hostile witness what the prosecutor and the police, who were friendly to her cause, were unable to learn after their numerous interviews with her? The trial court's suggestion that defense counsel was to blame for his failure to learn of Smith's intended testimony in a timely manner was outrageous . Equally offensive is the trial court's conclusion that a thirty minute extension of the lunch break was sufficient time to enable defense counsel to investigate the credibility of Smith's sudden disclosure and revise his defense strategy accordingly, all the while continuing to manage the defense of a double homicide trial. The trial court had at least three appropriate responses to the apparently sudden turn of events occasioned by Smith's surprise testimony : declare a mistrial, based upon manifest necessity; recess the trial for a reasonable period of time to enable the defense to determine what it must do to provide competent representation ; or deny the introduction of the testimony . After all, the Commonwealth was without advance knowledge of Smith's surprise testimony and had obviously planned to prove the case without it. Any of those alternatives would have guaranteed each party a fair trial. The resolution imposed by the trial court deprived Whaley of a fair trial and was, therefore, an abuse of discretion . I therefore dissent .

COUNSEL FOR APPELLANT : Samuel N. Potter Department of Public Advocacy Assistant Public Advocate 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

'Suprrmt Courf of

2009-SC-000797-MR

rnfnrkV

MARCUS FRESH

APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE CHARLES LOUIS CUNNINGHAM, JR ., JUDGE NO . 07-CR-000577

V.

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Marcus Fresh, was convicted by a Jefferson Circuit Court jury of murder and retaliation against a participant in the legal process . Fresh received a sentence of twenty-four and five years, respectively for each crime, to run concurrently . He now appeals as a matter of right. Ky. Const. § 110(2) (b) In this appeal, Fresh raises two issues for our review. He contends that the trial court erred by not allowing introduction of evidence that another person admitted to shooting the victim; and that the trial court evaluated his motion for a new trial under the wrong standard and erroneously denied the motion. We find both contentions without merit, and detail our reasoning below.

I . Background Marcus Fresh and the victim, Edrisha Reed, were long-time friends and also had a romantic relationship of sorts.. Growing animosity between Fresh and the victim however sparked a two day period involving multiple instances of domestic violence culminating in the victim's murder. In the early morning hours of February 1, 2007, Louisville Metro police found the victim shot to death in her car, near the Iroquois housing projects . Fresh was indicted for the murder. Although there were no eyewitnesses, considerable circumstantial evidence implicated Fresh . In the two days prior to the victim's death, the New Albany police were dispatched four times in response to the fighting between Fresh and the victim . The final police visit occurred at 9 :36 p.m . on January 31, 2007, but Fresh was able to evade the police . Four of the victim's neighbors gave their accounts of the events occurring on January 31, 2007 . They each saw or heard Fresh beating the victim, sometimes with the butt of a pistol . Several also testified that Fresh carried a pistol and repeatedly told the victim that he was going to kill her. Additional testimony established that Fresh was in the Iroquois housing projects hours before the victim was killed . Shermaine, the victim's sister, testified that Fresh visited her in Iroquois and told her to inform the victim that he was going to shoot the victim because she called the police on him. Fresh testified that at the time of the shooting he was at Joe's Palm Room, a night club near downtown Louisville . He also introduced testimony

attempting to impugn Kenneth Williams ("JR") as the shooter . Dicoy Gaston testified that two hours before the shooting, he overheard the victim and JR arguing over pills . Gatson testified that JR threatened to kill the victim if he did not get pills or money . However, there was also evidence that Fresh worked to influence the testimony in this case . The jury presumably did not believe Fresh's alibi or that the victim was shot by JR in connection with some unrelated drug deal, and found him guilty of murder and retaliating against a participant in the legal process . II. Analysis A. Double Hearsay Testimony of the DPA's Investigator One of Fresh's central defense theories was that JR murdered the victim. To prove this, he intended to call James Quisenberry . While in jail awaiting trial for an unrelated capital murder charge, Quisenberry's co-defendant, JR, allegedly confessed to Quisenberry that he murdered the victim in this case . However, at Fresh's trial, Quisenberry invoked his Fifth Amendment right to remain silent, rather than testify and potentially expose himself to the Commonwealth's cross-examination regarding his pending capital murder case . Not to be denied, Fresh sought to introduce the testimony of Mike Wilson, an investigator for the Department of Public Advocacy (DPA), who would have testified that Quisenberry told him that JR told Quisenberry he killed the victim . The trial court excluded this testimony as double hearsay .

Consequently, the investigator testified on avowal that during a jail interview, Quisenberry told the investigator, his counsel, and Fresh's counsel from the DPA that JR said he killed the victim. However, the investigator admitted that he had no verbatim record of what was said during the interview. Fresh first argues that the trial court's ruling, excluding the investigator's testimony, violated his right to present a defense . He concedes that having the DPA investigator testify presented the problem of double hearsay ; however, he correctly notes that in some circumstances, evidentiary rules must give way to the defendant's right to present a defense . He interprets several of our cases as creating a balancing test, which permits admission of evidence despite an evidentiary rule to the contrary, if its importance to the defendant outweighs the prejudicial effects the rule protects against. Accordingly, Fresh claims that his enormous need for the DPA investigator's testimony compared with the "very small" risk of faulty transmission, evinces an exceptional situation in which the hearsay rule excluding this testimony improperly abridged his right to present a defense . We disagree, as the balancing test Fresh cites is inapplicable here . The Supreme Court of the United States has repeatedly declared that "the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense ." Holmes v. South Carolina, 547 U .S. 319, 324 (2006) (internal quotations omitted) . However, the "defendant's right to present relevant evidence is not unlimited," and thus, "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding

evidence from criminal trials ." U.S. v. Scheffer, 523 U.S . 303, 309 (1998) . This latitude is impermissibly exceeded when an accused's right to present a defense "is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve ." Holmes, 547 U.S . at 324 (internal quotations omitted) . In two recent cases, we noted that several other courts utilized a test to determine whether an exclusion was disproportionate by balancing "the importance of the evidence to an effective defense, [and] the scope of the ban involved against any prejudicial effects the rule was designed to guard against." Dennis v. Commonwealth, 306 S.W.3d 466, 474 (Ky. 2010) (internal quotations and citations omitted) . However, Dennis concerned a defendant's Sixth Amendment confrontation rights, and, we further clarified in Montgomery that the balancing test utilized by these other courts was "for evaluating, on a caseby-case basis, Confrontation Clause and other Sixth Amendment challenges premised upon the exclusion of evidence." Montgomery v. Commonwealth, 320 S.W. 3d 28, 42 (Ky. 2010) . Turning back to the present case, Fresh attempts to apply the above balancing test to the rule excluding hearsay, naturally with his interest in introducing the inadmissible hearsay outweighing any resulting prejudice . However, the balancing test is inapplicable to the hearsay rule . As we stated in Montgomery, this case-by-case balancing test is applicable to the "Confrontation Clause and other Sixth Amendment challenges . . . ." Id. Moreover, the two cases cited by Fresh, Dennis and Montgomery, are sex crime

cases involving a minor victim, wherein we addressed the tension between the extent of the defendant's right to cross-examine the victim and the rape shield rule . Here, Fresh fails to direct us to any alleged violation of the Confrontation Clause or any other Sixth Amendment right. Rather, he is challenging the trial court's exclusion of the DPA investigator's testimony relaying an inmate's account of another inmate's purported confession, i.e., hearsay within hearsay . Thus, his attempt to introduce inadmissible hearsay as direct evidence does not implicate the Sixth Amendment . Therefore, the balancing test Fresh plucked from two of our Confrontation Clause cases is incompatible with his argument . Moreover, we decline to extend this balancing test, utilized for Sixth Amendment challenges, to this area of the law. Essentially, Fresh would have us create a framework where the well-established hearsay rules can be displaced if the need for the statement is large enough and there is little risk of inaccuracy . Under this judicially-created superceding exception, hearsay is admissible, despite failing to qualify for one of the numerous exceptions, when the litigant's compelling need for the hearsay statement outweighs any resulting prejudice . Creating this exception would eviscerate our well-established hearsay rules. Trial courts would face a litany of arguments regarding the compelling importance of supposedly "reliable" hearsay testimony, and criminal trials would quickly devolve into a parade of prisoners repeating what they "heard"

someone else say about the crime .' Rather than extend this balancing test to the hearsay framework, we further reaffirm that our deeply-rooted and "fundamental rule in the law of evidence is that hearsay evidence is inadmissible evidence . . . [unless] it meets one of our well established exceptions ." Walker v. Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009) (internal quotations omitted) . That being said, we must still evaluate whether the hearsay rules are "disproportionate to the purposes they are designed to serve," thereby improperly abridging Fresh's right to present a defense.2 Holmes, 547 U .S. at 324. When examining the hearsay rules, we have no difficulty concluding that they are proportionate to the interests for which they were created. Hearsay is inadmissible primarily due to its inherent unreliability. Harrison v. Commonwealth, 858 S.W .2d 172, 176 (Ky .1993) . The veracity of a hearsay statement is left unquestioned, as the circumstances surrounding the statement and the motivations of the hearsay declarant are undeveloped, thereby circumventing the adversarial process . By filtering out unreliable testimony, the hearsay rules ensure fair trials with the fact-finder making a decision based on admissible evidence. Comparatively, the hearsay rules are no more broad than necessary to accomplish reliable, fair, and trustworthy results . The general exclusion of

2

We need to look no further than the present case for an example . The genesis of this alleged confession arose from a jailhouse conversation involving two inmates awaiting their trial on capital murder charges . Fresh claims Quisenberry decided to alert the DPA of this conversation because "it was the right thing to do." Fresh does not contend that the hearsay rules are arbitrary . 7

hearsay is qualified by numerous exceptions, which provide for admission of hearsay statements in certain circumstances . See KRE 803, 804 ; see also Wells, 892 S .W.2d at 301 (stating that "[t]hese exceptions grew from ancient common law supported by the theory that the character and context of such statement adds sufficient reliability to permit admission .") . In sum, the hearsay rules are not disproportionate to the interests served. Consequently, we conclude that the application of the hearsay rules here--excluding the DPA investigator's testimony repeating two levels of hearsay--did not impinge upon Fresh's right to present a defense. B. The Trial Court Applied the Correct Standard When It Denied Fresh's Motion for a New Trial . In Fresh's final argument, he contends that the trial court abused its discretion when it denied his motion for a new trial based on newly discovered evidence . The "new evidence" at issue, was another jailhouse witness, inmate Raymond Jefferies, allegedly overhearing JR, while having his hair cut in jail, admit to killing the victim. The trial court evaluated Fresh's motion under the standard we laid out in Porter v. Commonwealth: "newly discovered evidence . . . in order to warrant a new trial, must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial were granted ." 435 S .W.2d 756, 758 (1967) . After careful consideration, the court denied Fresh's motion . In a brief and somewhat unclear argument, Fresh claims the trial court evaluated his motion under the improper standard . Initially he highlights the irrelevant distinction that he filed his motion before judgment was final 8

compared with the multi-month delay in Porter. Then, without citation to any substantiating authority, Fresh claims that, since his motion was timely, the stringent requirements imposed on postjudgment motions for new trials cannot be applied. He further suggests that, because all other rules of criminal procedure are addressed to the sound discretion of the judge, there is no reason why that discretionary standard should not apply to this motion. We find this confused argument unconvincing . Initially, we note that "[w]hether to grant a new trial on the basis of newly discovered evidence is largely within the discretion of the trial court, and the standard of review is whether there has been an abuse of that discretion ." Foley v. Commonwealth, 55 S .W.3d 809, 814 (Ky. 2000) . Furthermore, in this Commonwealth, "[i]t is well-accepted that the standard for adjudging whether a new trial is warranted based upon newly discovered evidence is whether such evidence carries a significance which would with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted ." Bedingfeld v. Commonwealth, 260 S .W.3d 805, 809-810 (Ky. 2008) . As stated above, the trial court evaluated Fresh's motion under the standard we explicated in Porter. "newly discovered evidence . . . in order to warrant a new trial, must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial were granted ." Porter, 435 S .W.2d at 758. The substance of this standard is the functional equivalent to the "well-accepted" standard we utilized in Bedingf eld. Accordingly, we conclude that the trial

court applied the correct standard . Fresh's argument highlighting the temporal differences between his case and Porter is inapposite, and his ipse dixit argument regarding an alternative standard is incompatible with well-accepted precedent, and thus unpersuasive . Consequently, we hold that the trial court did not abuse its discretion. III. Conclusion For the reasons stated above, we affirm the decision of the trial court. All sitting. All concur.

COUNSEL FOR APPELLANT : Daniel T. Goyette Louisville Metro Public Defender Public Defender Advocacy Plaza 717-719 West Jefferson Street Louisville, KY 40202 James David Niehaus Deputy Appellate Defender Office of the Louisville Metro Public Defender 200 Advocacy Plaza 719 West Jefferson Street Louisville, KY 40202 COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan Darwin Morrow Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

,$Uyrrntr Clourf of "pRmfurkV 2009-SC-000806-MR

GREGORY T. WETTERSTROEM

APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE MARTIN J. SHEEHAN, JUDGE NO . 08-CR-00697

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING This is a matter of right appeal from a judgment in which Appellant was convicted of first-degree arson for burning his neighbors' porch. Appellant argues that the trial court erred in failing to hold a second competency hearing, in not holding a hearing to determine whether Appellant was competent to waive an insanity defense, in failing to sua sponte suppress Appellant's confession, and in finding Appellant competent to stand trial. We adjudge that Appellant waived his argument regarding the failure to suppress his confession, as this was a decision based on trial strategy made by the Appellant himself against the advice of his counsel . We deem the remaining claims of error to be without merit. Hence, we affirm.

At around 3 :00 am on July 17, 2008, the back deck and porch area of Tracy and John Tribble's home caught fire . Fortunately, the Tribbles and their teenage son were awakened and escaped the fire before it spread to the rear portion of their house. While Tracy was standing outside and John was trying to put out the fire with a hose, Tracy noticed her neighbor, Gregory Wetterstroem, standing on his front porch . When Erlanger police officer Joel Shepherd arrived at the scene, he walked to the back of the house and noticed that the walkway off the steps of the Tribbles' deck led straight to Wetterstroem's door, and that there was a shed located between the deck and the door . As he approached the shed, he observed a yellow nozzle sitting on the ground . Peering in the shed, he saw a gas can with another yellow nozzle on it. On the other side of the shed, he observed another gas can lying on its side . Sergeant Shawn Sims, the lead arson investigator in the case, questioned Wetterstroem at the scene and later at the police station . Wetterstroem initially denied any involvement in the fire . He then agreed to take a black light test to check for the presence of accelerant on his body. When the light was shined on Wetterstroem, a spot on his shoe luminesced . When asked about the spot, Wetterstroem admitted he set the fire, but said he had good reason. At that point, he was read his Miranda rights . Wetterstroem then told police that he set the fire because his neighbors had put electrodes in the ground and had been shooting him with lasers, which were causing him bad headaches and

pain. Pointing to his foot, he stated that it was almost on fire because of the lasers . Wetterstroem was placed under arrest. When the police took him back to his house to let him change clothes, Wetterstroem walked them through exactly what he did when he set the fire . He told them he was awake watching television and had a headache and his foot was burning . He described how he then got a gas can and poured some of the contents on the deck. He went in his house and got a lighter and came out and ignited the gasoline on the deck. He tried to clean the gas can off and thereafter threw it in the back of the shed . Wetterstroem was indicted for first-degree arson on September 11, 2008 . Subsequently, Wetterstroem's counsel moved the court for a psychological examination of the defendant through the Kentucky Correctional Psychiatric Center ("KCPC") . Pursuant to an agreed order, KCPC was ordered to conduct a mental health evaluation of Wetterstroem to determine his competency to stand trial and criminal responsibility . Wetterstroem's evaluation at KCPC was conducted by Dr. Steven Free, who issued his report on April 2, 2009 . The report indicated that Wetterstroem, who was 42 years old at the time of the fire, had been diagnosed with paranoid schizophrenia in 1999, that he had not worked since that time, and that he had been on SSI for his mental disability . Pursuant to Dr. Free's testing and examination of Wetterstroem, Dr. Free determined that Wetterstroem's IQ was 78; that his personality score reflected an "immature personality along with restlessness, foolishness, [and] poor judgment ;" and that

he "does suffer from a mental illness, believed to be schizophrenia, paranoid type ." However, Dr. Free reported that when he evaluated Wetterstroem at KCPC, Wetterstroem "did not display symptoms of a thought disorder or hallucinations ." Regarding competency, Dr. Free reported that at the time of the KCPC evaluation, he was unable to identify any mental condition that would significantly impair his capacity to stand trial and thus concluded that he was competent to stand trial . Regarding criminal responsibility, Dr. Free opined that Wetterstroem had "substantial grounds to argue inability to bear criminal responsibility based on his mental illness." Dr. Free noted that the issue of criminal responsibility should be for the trier of fact in this case, based on "a full examination of the facts and circumstances, including information regarding Mr . Wetterstroem's presentation and behavior at the time of the events in question ." Dr. Free qualified his recommendations in his report with the following : Mr . Wetterstroem's mental illness appeared to be in substantial remission at the time of his KCPC stay. This status could change at any time . The stresses of preparation and trial might well exacerbate Mr . Wetterstroem's symptoms of mental illness to the point that he would become incompetent. Those having regular contact with Mr. Wetterstroem should be alert to signs of decompensation . At the competency hearing held on June 2, 2009, Dr. Free was the only witness . Dr. Free's testimony, which was via telephone, reiterated much of what was in his report . The latter portion of the hearing was devoted to Dr. Free's comments regarding the possibility. that Wetterstroem could become incompetent prior to trial. The trial judge asked Dr. Free for advice in 4

monitoring Wetterstroem's competency during the time period leading up to trial. Dr. Free recommended that those individuals who had contact with Wetterstroem should be on the lookout for strange reactions or delusional behavior. At the conclusion of the hearing, the trial court ruled Wetterstroem competent to stand trial, but instructed defense counsel to keep in regular contact with Wetterstroem to monitor his behavior and report to the court any significant changes in his mental state . On August 12, 2009, two months before trial, Wetterstroem wrote a letter to the court requesting, among other things, that a public defender be appointed to replace current defense counsel. Wetterstroem expressed dissatisfaction with his current defense counsel, claiming that he was not representing him in his best interest . The court held a hearing on the motion during which Wetterstroem's counsel reported that Wetterstroem had rejected his counsel's advice, both tactically and strategically . The court denied the motion because Wetterstroem was not indigent and because the case had already dragged on too long. Wetterstroem subsequently dismissed his counsel . On September 16, 2009, attorney Derek Durbin was substituted to represent Wetterstroem, with the understanding that he would be ready for trial and would not seek a continuance in the case. On October 6, 2009, the Commonwealth filed a motion in limine to prohibit the defense from introducing evidence related to Wetterstroem's mental health, because the Commonwealth had received notice that the defense had withdrawn any mental health defense . Two days later, defense

counsel filed an ex pane motion to withdraw as counsel, which counsel requested to be sealed and the court so ordered . The motion alleged that defense counsel was being instructed by his client to not pursue any mental health-related defense and that counsel considered such decision unwise and ethically repugnant . The motion requested an ex parte hearing on the matter. The ex pane hearing was held on October 8, 2009 . During the hearing, in which only Wetterstroem and Durbin were present, the trial judge spoke to Wetterstroem at length, explaining to him what a mental health defense was and the viability of a mental health defense in his case . The court questioned Wetterstroem at length to make sure that Wetterstroem was competent and knew what he was doing and risking in waiving this defense. Against the advice of his counsel, Wetterstroem remained steadfast in his decision to waive any mental health defense . Recognizing the unnecessary delay that would result and that Durbin's representation of the Defendant would not violate the rules of professional conduct or perpetrate a fraud on the court, the trial court entered its order denying the ex parte motion on October 12, 2009 . The trial court stated the following in its order, "The Court further notes that it has taken great steps to assure that the Defendant is both competent to stand trial and competent to exercise decisions with respect to trial strategy ." Pursuant to Wetterstroem's wishes, no mental health defense was asserted at the jury trial on October 13, 2009 . The Commonwealth introduced evidence of Wetterstroem's confession and presented ample evidence that he

started the fire. The only witness put on by the defense was Wetterstroem . Wetterstroem's sole defense was that he did not set the fire . As to his confession, Wetterstroem testified that he only confessed because he was offered a reduced sentence and did not want to take the chance of getting twenty years to life . The jury found Wetterstroem guilty of first-degree arson and recommended a sentence of twenty years, the minimum sentence for the offense . From the judgment of conviction, in which Wetterstroem was sentenced according to the jury's recommendation, Wetterstroem now appeals . COMPETENCY RULING We shall first address the only argument properly preserved for appellate review - that the trial court erred in its initial ruling that Wetterstroem was competent to stand trial . A defendant is incompetent to stand trial if, "as a result of mental condition," he lacks the "capacity to appreciate the nature and consequences of the proceedings against [him] or to participate rationally in [his] own defense[ .]" KRS 504.060(4) . "A competency determination is based on the preponderance of the evidence standard ." Chapman v. Commonwealth, 265 S .W.3d 156, 174 (Ky. 2007) . On appellate review, "[w]e may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i .e ., not supported by substantial evidence) ." Id. (citing Thompson v. Commonwealth, 147 S.W .3d 22, 33 (Ky . 2004)) (footnote omitted) . Dr. Free stated in his report that in his interview with Wetterstroem, Wetterstroem indicated he was well aware of his legal situation, the offense he

was charged with, and the severity of the charge against him. According to the report and Dr. Free's testimony at the competency hearing, Wetterstroem demonstrated an understanding of the legal system, including the function of the jury, the judge, the prosecutor, and his attorney. Wetterstroem also demonstrated an understanding of how the trial would be conducted and his role in the proceeding. Dr. Free stated that Wetterstroem "has thought in a logical and coherent way about the details of defending himself against the current charges." While acknowledging that Wetterstroem had been diagnosed with paranoid schizophrenia in the past, Dr. Free nevertheless opined that, based on his current state, Wetterstroem was competent to stand trial . In all of the proceedings wherein Wetterstroem spoke on the record, including his testimony at trial, Wetterstroem responded appropriately and coherently to questions and did not demonstrate any delusional behavior or disturbed thought process. A defendant who has been diagnosed with schizophrenia is not per se incompetent to stand trial . See Commonwealth v. Carneal, 274 S.W.3d 420 (Ky. 2008) . From all of the above, we adjudge that the trial court's competency ruling was supported by substantial evidence and, thus, we cannot say that the trial court erred in finding Wetterstroem competent to stand trial. SECOND COMPETENCY HEARING Wetterstroem argues that the trial court erred in failing to hold a second competency hearing in this case when there was evidence that his mental state had gotten worse before trial and Dr. Free had warned the court that

Wetterstroem could become incompetent at any time. There was no request for a subsequent competency hearing in this case . Hence, the issue was not preserved for appellate review. Wetterstroem nevertheless asks that we review the issue for palpable error pursuant to RCr 10 .26. Per RCr 8 .06, If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in . his or her defense, all proceedings shall be postponed until the issue of incapacity is determined as provided by KRS 504 . 100 . "Reasonable grounds must be called to the attention of the trial court or must be so obvious that the trial judge cannot fail to be aware of them." Lear v. Commonwealth, 884 S.W .2d 657, 659 (Ky. 1994) . Our standard of review as to a trial court's failure to hold a competency hearing is whether a reasonable judge in the same situation as the trial court should have experienced doubt regarding the defendant's competency to stand trial. Mills v. Commonwealth, 996 S .W.2d 473, 486 (Ky. 1999), overruled in part on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) . Wetterstroem maintains that Dr . Free's warning that he could become incompetent, coupled with a letter Wetterstroem subsequently wrote to the court, should have put the trial court on notice that his mental state had changed and there was sufficient doubt as to Wetterstroem's competency to stand trial to warrant a second competency hearing . The letter in question was handwritten by Wetterstroem and filed in the record on August 12, 2009, two

months after the first competency hearing . The letter claims that the Commonwealth has no evidence against him, that he confessed only after being offered a plea deal by police, that he did not receive the report from KCPC, and that his counsel was not representing his best interests . The letter asks that new counsel be appointed for him and that the case against him be "thrown out of court." In examining the letter, we cannot say that it called into doubt Wetterstroem's competency . The assertions in the letter are not uncommon for a criminal defendant . Further, Wetterstroem expressed himself in a logical and coherent manner. Dr . Free's report did not state that it was inevitable that Wetterstroem would become incompetent to stand trial, only that it was a possibility . Per Dr. Free's recommendation, the trial court advised defense counsel at the first competency hearing to report to the court if there was a significant change in Wetterstroem's mental state, and defense counsel agreed to do so. Trial counsel did not subsequently report any change in his client's mental state, only that Wetterstroem was not satisfied with his counsel and did not want to assert a mental health defense . And, as we shall address below, the court did hold a subsequent hearing to determine whether Wetterstroem was competent to waive a mental health defense and make decisions regarding his trial strategy . Further, as stated above, Wetterstroem's behavior during all of the proceedings did not raise any issue of his competency, as his behavior and

10

responses were rational and appropriate . Accordingly, the trial court did not err in failing to conduct a second competency hearing . HEARING ON WAIVER OF MENTAL HEALTH DEFENSE Wetterstroem argues that the trial court erred in failing to hold a hearing pursuant to Dean v. Commonwealth, 777 S .W.2d 900, 908 (Ky. 1989), overruled in part on other grounds by Caudill v. Commonwealth, 120 S .W.3d 635 (Ky. 2003), to determine whether he was competent to knowingly and intelligently waive a mental health defense . In Dean, as in the instant case, the defendant sought to waive an insanity defense . Id. at 907. Unlike the present case, however, defense counsel in Dean nevertheless presented an insanity defense over the defendant's objection, while still allowing his client to maintain his innocence . Id. While not reversing the conviction on this ground, this Court set forth guidelines to be followed when such a conflict arises between the defendant and defense counsel. Id. at 908 . One of the requirements is that the trial court must hold a hearing to determine if the defendant is capable of voluntarily and intelligently waiving the available defense. The trial judge must conduct an inquiry designed to assure that the defendant has been fully informed of the alternatives available, comprehends the assert the consequences of failing to defense, and freely chooses to raise or waive the defense. Even if a defendant is found competent to stand trial, he may not be capable of making an intelligent decision about his defense . Under our statutes, one is competent to stand trial if he or she possesses the "capacity to appreciate the nature and consequences of the proceedings against one [and] to participate rationally in one's own defense ." KRS 504 .060(4) . It is

possible that a defendant found competent to stand trial might be unable to comprehend the consequences of choosing not to use the insanity defense, thus rendering the defendant incapable of intelligently waiving the defense . The accused might also suffer a mental disability which would make it difficult or impossible to recognize his or her present condition . If the trial judge determines the defendant is incapable of voluntarily and intelligently waiving the defense of insanity, counsel must proceed as the evidence and counsel's professional judgment warrant . Dean, 777 S.W .2d at 908 (quotations and citations omitted) .

Wetterstroem contends that such a hearing was warranted in the present case and that the trial court erred in failing to conduct such a hearing . Upon review of the record, we see that the trial court did, in fact, conduct just such a hearing as envisioned in Dean in the hearing on defense counsel's ex pane motion to withdraw on October 8, 2009, five days before trial. As noted earlier, the trial judge spoke to Wetterstroem at length during this hearing, explaining to him that a successful mental health defense would prevent a conviction and that, according to Dr . Free's report, he had a strong mental health defense in this case . Wetterstroem indicated he understood everything the court was saying, but was still insistent that he did not want to assert a mental health defense . The judge went so far as to say, If you're looking at a crime that could put you in prison for life, and you've got, you've got an expert witness saying you've got a pretty strong defense to present, why would you choose to abandon that defense and go down a path where you're gonna be arguing simply that I didn't do it, knowing that their evidence is a videotaped confession saying, you know, I did it, here's how I did it and here's why I did it? To that, Wetterstroeom responded, "I'd rather not discuss that ." 12

The court directly questioned Wetterstroem to assess his competency and make sure he knew what he was doing in waiving this defense and that the waiver was voluntary . The judge asked Wetterstroem if he was on any medications while in jail, to which Wetterstroem responded that he was not. Wetterstroem also denied having any hallucinations or delusions while in custody . When the court asked Wetterstroem if he was aware that he suffered from mental illness, Wetterstroem replied that he had been told that he did, but he did not believe that he was mentally ill . The trial court noted on the record that Wetterstroem was able to effectively communicate, responded appropriately to questions, appeared to understand the legal process and the roles of the parties, and could effectively assist in his defense . The court also asked defense counsel if he had noticed any change in Wetterstroem's mental state, to which Durbin responded that he had not. Durbin added that Wetterstroem's prior attorney had likewise not informed him of any change in Wetterstroem's mental state . We believe that the trial court did everything in its power to insure that Wetterstroem was knowingly, intelligently, and voluntarily waiving his right to assert a mental health defense . As there was substantial evidence to support the court's ruling, the trial court did not err in finding that Wetterstroem was competent to make decisions about trial tactics in his case, including his decision to waive a mental health defense .

SUPPRESSION OF VIDEOTAPED CONFESSION Wetterstroem contends that the trial court erred in failing to suppress his videotaped confession to police . Wetterstroem concedes that no motion to suppress was made by the defense, but maintains that the trial court should have sua sponte suppressed the confession because he was incapable of a Miranda waiver and the confession was not voluntary . Once again, Wetterstroem asks this Court to review the issue for palpable error pursuant to RCr 10 .26. Wetterstroem argues that at the time he gave his statement to police he was not competent, as evidenced by his delusional statement that he set the fire because the neighbors had put electrodes in the ground and had been shooting him with lasers . Thus, Wetterstroem contends that he could not have intelligently and knowingly waived his Miranda rights . The problem with Wetterstroem's argument is that the failure to seek suppression of the confession based on his mental illness was the result of Wetterstroem's own decision to not raise his mental illness in defense of his case - either as a defense to the crime or as a basis to attack his confession . After the trial court found Wetterstroem competent to make decisions regarding trial strategy, defense counsel's hands were tied. See Jacobs v. Commonwealth, 870 S.W .2d 412, 419 (Ky. 1994) ("Neither counsel nor the court has the power to contravene a defendant's voluntary and intelligent decision to forego a . . . defense .") From the record, it was clear that defense counsel felt that Wetterstroem's decision was ill-advised and that counsel would have raised his 14

mental illness to attack the confession if he had been allowed by Wetterstroem . Accordingly, this argument was waived, not by counsel's failure to preserve, but by Wetterstroem himself, who made the choice, rightly or wrongly, to not attack his confession based on his mental illness. For the reasons stated above, the judgment of the Kenton Circuit Court is affirmed. All sitting . All concur.

COUNSEL FOR APPELLANT : Samuel N. Potter Department of Public Advocacy Assistant Public Advocate 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601

COUNSEL FOR APPELLEE: Jack Conway Attorney General Room 118, Capitol Bldg. Frankfort, KY 40601 Todd Dryden Ferguson Susan Roncarti Lenz Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capitol Center Drive Frankfort, KY 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 'THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

~sUyrrmr ~Vurf of

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

2009-SC-000811-MR

rnfurhv

BILLY R . HOLLAN, JR .

V

APPELLANT

ON APPEAL FROM LEE CIRCUIT COURT HONORABLE THOMAS P . JONES, JUDGE NO . 08-CR-00047

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Following a jury trial in the Lee Circuit Court, Billy R. Hollan, Jr. was convicted of the wanton murder of his infant daughter, Haylei . Hollan received twenty years imprisonment and now appeals as a matter of right . The sole issue on appeal is whether the trial court erred when it denied Hollan's motions for a directed verdict based on insufficient evidence of wanton murder. Finding no error, we affirm Hollan's conviction . RELEVANT FACTS On April 24, 2008, at about 11 :00 a.m., Hollan picked up his four month-old daughter, Haylei Hollan, from her step-grandfather's house and took her home to care for her while Haylei's mother was at school . Hollan was the only person with Haylei in the hours before her death . In his recorded

statement to police, Hollan gave varying accounts of exactly what occurred and admitted to initially lying to the police . Hollan said Haylei began to cry and, in an effort to quiet her, he held her "pretty tight," with her head in the crook of his right elbow, his right arm under her back, and his right hand supporting her bottom . He placed his left hand upside-down over her mouth, with his pinkie touching under her nose, but said he left room for her to breathe . Hollan bounced Haylei in his arms and held her in this position until she stopped crying. He claimed he later gave her a bottle and they fell asleep together on the couch or the bed . When he awoke twenty or thirty minutes later, Haylei was blue, cold to the touch, had milk coming out of her nose and was not breathing . Hollan took her to the neighbor's apartment to get help but resuscitation efforts by bystanders and the paramedics were to no avail. The autopsy performed by Dr. Jennifer Shott, then the state medical examiner for the Commonwealth of Kentucky, revealed abrasions on both sides of the posterior neck, intramuscular hemorrhaging along the back of the spine, and hemorrhaging of the soft tissue at the front of the neck. Dr . Shott opined that the intramuscular and soft tissue hemorrhaging were blunt force injuries that could have been caused by a blow or being held too tightly . Dr . Shott also found petechial hemorrhaging around both eyes and on the upper cheeks . Petechia are the result of capillaries bursting because of increased pressure and are most commonly seen in asphyxial deaths and death due to overwhelming illness and sepsis . Haylei's labial frenulum, the tissue that connects the upper lip to the gum, was lacerated . Dr . Shott stated this

perimortem blunt force injury was an unusual finding and could have been caused by someone tightly holding his or her hand over Haylei's mouth. There was also a small subgaleal hemorrhage, caused by blunt force trauma, and perimortem fractures of the right posterior ribs four, five and six . According to Dr. Shott and Dr. Emily Craig, a forensic anthropologist who consulted on the fractured ribs, the fractures could not have been caused by the two-finger CPR performed on Haylei . Dr. Shott stated it is extremely rare for infants to be injured during CPR and she had never seen a posterior rib fracture in an infant due to CPR. According to Dr . Craig, the only way a posterior rib fracture can occur in an infant is when there is pressure surrounding the entire rib cage . Dr. Shott ruled out the possibility that Haylei choked to death on her formula because there was no evidence of milk in the lungs or airways and Dr. Shott had never heard of anyone fatally choking on milk. In addition, it is common to see liquid emerge from the nose or mouth at the time of death. Dr . Shott also ruled out overheating and SIDS (Sudden Infant Death Syndrome), also known as SUID (Sudden Unexplained Infant Death) or SUDI (Sudden Unexplained Death in Infants), as a cause of death. If Haylei had died from overheating she would not have been cold to the touch and if she had died from SIDS there would be no findings of other injuries . Dr. Shott considered and discarded caregiver overlay due to co-sleeping as the cause of death because it was inconsistent with the blunt force injuries and in that type of death there is usually blanching around the mouth, which was not present here . Finally, Dr . Shott concluded the microscopic pneumonia found in Haylei's lungs did not

contribute to her death because it was extremely early pneumonia that probably would not have been symptomatic. Dr. Shott determined Haylei died from smothering and strangulation or compression of her neck. Defense expert Dr. Janice Ophoven reached a different conclusion . The only findings she considered to be of consequence were the lacerated labial frenulum, the fractured posterior ribs and the petechial hemorrhaging . Dr. Ophoven disagreed with Dr. Shott's conclusion that the lacerated labial frenulum occurred perimortem and could have been caused by someone placing their hand over Haylei's mouth . In that situation, Dr. Ophoven testified, there would be blood or pus in the tissue, and because there was neither here, the laceration must have occurred postmortem. According to Dr. Ophoven, the postmortem laceration of the labial frenulum could have been caused by CPR. Similarly, Dr. Ophoven disagreed with Dr. Craig's conclusion that the posterior rib fractures could only be caused by circumferential pressure on the rib cage . Dr . Ophoven stated newer research indicates that CPR done on a soft surface, such as the couch on which Haylei was placed, increases the leveraging of the ribs and can cause posterior rib fractures in infants . Dr . Ophoven opined the most likely cause of Haylei's death was caregiver overlay due to co-sleeping . According to Dr. Ophoven, the incidence of infant death by caregiver overlay is much higher than homicide. The jury received instructions on all levels of homicide, including a murder instruction that separated intentional and wanton murder. The jury unanimously found Hollan guilty of wanton murder. As noted, Hollan received

twenty years imprisonment and appeals as a matter of right . Ky. Const. § 110(2)(b) . We turn now to the sole issue raised on appeal, whether the trial court erred when it denied Hollan's motion for a directed verdict based on insufficient evidence of wanton murder. ANALYSIS The appellate standard of review of a directed verdict is whether, viewing the evidence in a light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U .S . 307 (1979) ; Commonwealth v. Benham, 816 S .W .2d 186, 187 (Ky. 1991) . This inquiry does not require the appellate court itself to believe the evidence established guilt beyond a reasonable doubt, nor does it permit the appellate court to assess the credibility of witnesses . Jackson, 443 U.S . at 318-19 ; Beaumont v. Commonwealth, 295 S .W.3d 60 (Ky. 2009) . It is for the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U .S . at 319 . The same test is used when the only evidence of guilt is circumstantial . Ratliff v. Commonwealth, 194 S .W.3d 258, 267 (Ky. 2006) . A jury may make reasonable inferences from circumstantial evidence, including inferences about knowledge and guilt . Dillingham v. Commonwealth, 995 S.W .2d 377 (Ky. 1999) ; McRay v. Commonwealth, 675 S .W.2d 397 (Ky. App. 1984) . While circumstantial evidence "must do more than point the finger of suspicion," Davis v. Commonwealth, 795 S .W.2d 942, 945 (Ky. 1990), a conviction can be

based on circumstantial evidence if, taking the evidence as a whole, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt,

Graves v. Commonwealth, 17 S.W .3d 858, 862 (Ky. 2000) . In order to convict Hollan of wanton murder, the Commonwealth had to prove that, under circumstances manifesting extreme indifference to human life, Hollan wantonly engaged in conduct that created a grave risk of death to Haylei and thereby caused her death. Kentucky Revised Statute (KRS) . Hollan acted wantonly if he was aware of and consciously .020(1)(b) 507 disregarded a substantial and unjustifiable risk that his conduct would kill Haylei . KRS 501 .020(3) .

The risk must have been of such nature and degree

that disregarding it constituted a gross deviation from how a reasonable person would have acted in that situation . Id. As noted, though some of the evidence in this case was circumstantial and required the jury to draw inferences, this does not render the conviction improper . From Hollan's police statement and from the testimony of the Commonwealth's witnesses, a reasonable juror could conclude that, wanting to quiet the child, Hollan squeezed her torso forcibly enough to break her ribs and either clamped his hand over her mouth or applied pressure to her throat so as to suffocate or strangle her. Hollan argues that because there was no evidence of his state of mind, a jury could not find wantonness, i.e., that he was aware of and consciously disregarded a substantial and unjustifiable risk that his conduct would kill Haylei. However, a confession in which the defendant reveals his state of mind is not necessary for a conviction . The jury is

permitted to make reasonable inferences, including inferences about the defendant's state of mind, from the act itself and the surrounding circumstances . See Commonwealth v. Suttles, 80 S .W.3d 424 (Ky. 2002) . Squeezing a four month-old infant tightly and blocking her breathing create so obvious a risk of death that it was not unreasonable for the jury to conclude that Hollan, manifesting an extreme indifference to human life, wantonly engaged in conduct that caused Haylei's death . Against this conclusion, Hollan points to Dr. Ophoven's testimony as providing a more probable account of Haylei's death . However, the Commonwealth is not required to "rule out every hypothesis except that of guilt beyond a reasonable doubt." Jackson, 443 U .S . at 326. Where there is competing evidence as to cause and manner of death, the jury is entitled to weigh the conflicting evidence . Davis, 795 S.W .2d at 945 (quoting Murtaugh v. Commonwealth, 579 S.W.2d 619 (Ky. 1979)) . It was entirely within the jury's province to evaluate the witnesses' credibility and determine the weight to lend their testimony . Potts v. Commonwealth, 172 S .W .3d 345 (Ky. 2005) . We will not, on appellate review, "reevaluate the evidence or substitute its judgment of the credibility of the witnesses for that of the jury." Suttles, 80 S .W.3d at 426. Because the evidence was sufficient to permit a reasonable jury to find Hollan guilty of wanton murder beyond a reasonable doubt, the trial court did not err by denying his motion for a directed verdict .

CONCLUSION Viewing the evidence in a light most favorable to the Commonwealth, it was not unreasonable for the jury to find guilt beyond a reasonable doubt in this wanton murder case . For the foregoing reasons, the Judgment of the Lee Circuit Court is affirmed. All sitting . All concur.

COUNSEL FOR APPELLANT : Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601 COUNSEL FOR APPELLEE: Jack Conway Attorney General Gregory C . Fuchs Assistant Attorney General Office of Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

,~$uyrrntr Courf of '~rnfurkV 2010-SC-000032-MR

ANTONIO EUMONT SMITHER

V

APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D . ISHMAEL, JR ., JUDGE NO . 08-CR-00908

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING On the night of June 18, 2008, around midnight, Jackie Corman was driving down Alexandria Drive on her way home to her apartment . Appellant, Antonio Smither, was also walking down Alexandria Drive and followed Corman . In front of her apartment, Corman was attacked by Appellant . Antonio Martinez-Vila, Corman's boyfriend, was inside the apartment with some of his friends at the time. He heard screaming, came to the door, and saw Appellant strike Corman and run off with her purse . Martinez-Vila and his companions chased Appellant into some nearby bushes and surrounded him . When Martinez-Vila dove into the bushes after him, Appellant fled to a nearby fire station . He punched through the glass in a window, getting the attention of a fireman who held him until the police

arrived . Martinez-Vila and a neighbor later retrieved Corman's purse from the bushes . Appellant was arrested and later tried before a Fayette County jury. The jury found Appellant guilty of robbery in the second degree and being a persistent felony offender (PFO) in the first degree . He was sentenced to ten years imprisonment on the robbery charge, enhanced to twenty years by virtue of the PFO conviction. He now appeals as a matter of right. Ky. Const. § 110(2) (b) .

Expert testimony regarding eyewitness identifications Appellant first argues that portions of his expert witness' testimony were improperly excluded . The defense retained the assistance of Dr . Solomon Fulero, an expert in the field of eyewitness identifications . A Daubert hearing was held to assess the admissibility of the proposed testimony, at which the Commonwealth stipulated Dr . Fulero's qualifications . See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S . 579 (1993) . The primary issue was the relevancy of his testimony . Following the hearing, the trial court reserved its ruling in order to consider the issue in light of the proof adduced at trial. At trial, four witnesses testified that they identified Appellant to police on the day of the robbery . Martinez-Vila testified that he chased Appellant from the apartment, never losing sight of him until he was apprehended. He further testified that he recognized Appellant by his hair and clothing . Jackie Corman also identified Appellant at the fire station, as well as in the courtroom . James

Arthur and Sue Ann Russell both testified that a man ran by them to the fire station while being chased by a group of Hispanic males. Both acknowledged that they did not see the man's face, but identified him at the fire station based on features such as his hair style and clothing . Because neither witnessed the attack, the testimony of both Arthur and Russell was simply that the man they saw being chased was Appellant . Following this testimony, the trial court ultimately ruled that Dr. Fulero could provide opinion testimony regarding Jackie Corman's identification of Appellant . This included expert testimony regarding the different factors that adversely affect a witness' ability to perceive and remember an event. The trial court disallowed testimony regarding unconscious transference, the reliability of eyewitness identifications, statistics concerning DNA exonerations in cases based upon eyewitness testimony, and conclusions as to the reliability of eyewitnesses . Finally, the trial court did not permit testimony specifically relating to Martinez-Vila's identification, concluding that it was irrelevant because Martinez-Vila testified that he never lost sight of Appellant during the chase. As the trial court acknowledged, expert witness testimony regarding the reliability of eyewitness identification is admissible in Kentucky . Commonwealth v. Christie, 98 S.W .3d 485, 488 (Ky. 2002) . "Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements

of Daubert, (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702 ." Stringer v. Commonwealth, 956 S .W .2d 883, 891 (Ky. 1997) . The trial court's decision with respect to the admissibility of expert testimony is reviewed for abuse of discretion. Christie, supra. Here, the trial court did not abuse its discretion because the excluded portions of Dr . Fulero's testimony were not relevant . KRE 401 . Martinez-Vila testified that he never lost sight of Appellant during the chase . In such circumstances, where identification does not rest upon memory or recall, eyewitness identification testimony is irrelevant . The trial court properly excluded this portion of Dr. Fulero's testimony . The trial court also did not abuse its discretion in concluding that the remaining excluded portions of Dr. Fulero's testimony were equally irrelevant . Testimony concerning unrelated DNA exonerations in cases based upon eyewitness testimony bore little relevance and certainly would have confused the jury, particularly where no DNA evidence was presented against or by Appellant . Testimony concerning unconscious transference was equally irrelevant . Unconscious transference is the phenomenon where a witness will mis-identify someone the witness is familiar with from another, unrelated situation . The trial court correctly ruled that unconscious transference was irrelevant where there was insufficient evidence that Appellant lived in the

same area as Corman and Martinez-Vila; or that they had ever seen him before . Finally, Dr . Fulero was properly prohibited from testifying about the reliability of eyewitness identifications . Where Dr. Fulero was permitted to explain the different factors that can affect eyewitness recall, it was within the province of the jury to assess the reliability of Corman and Martinez-Vila's identifications and testimony . The trial court properly admitted those portions of Dr. Fulero's testimony that were relevant to Corman's eyewitness identification of Appellant . In so doing, Appellant was afforded the opportunity to present a full defense and to sufficiently attack the validity of Corman's identification . There was no abuse of discretion . Instruction on PFO in the second degree Appellant argues that the trial court erred in not giving an instruction on PFO in the second degree as a lesser included offense of PFO in the first degree . A trial court is only required to give a lesser included offense instruction where "the evidence would permit a juror reasonably to conclude that . . . the defendant was not guilty of the charged offense but was guilty of the lesser one ." Lawless v. Commonwealth, 323 S .W.3d 676, 680 (Ky. 2010) (citing Fredline v. Commonwealth, 241 S .W.3d 793 (Ky. 2007) ; Fields v. Commonwealth, 219 S .W.3d 742 (Ky.2007)) . When dealing with PFO in the first degree charge, if there is no evidence to put the prior convictions at issue, an instruction on PFO in the second degree is not required . Payne v.

Commonwealth, 656 S .W.2d 719, 721 (Ky. 1983) . We will review the trial court's decision not to issue a jury instruction under the abuse of discretion standard. Crain v. Commonwealth, 257 S .W.3d 924 (Ky. 2008) . In this case, the Commonwealth submitted proof of four prior felonies and none were denied or challenged. The parties agreed that, under KRS 532 .080(4), two of those four convictions . should be combined and considered as one for purposes of the PFO in the first degree charge. In order for the jury to have concluded that Appellant was not guilty of being a PFO in the first degree, but was guilty of being a PFO in the second degree, they would have had to also conclude that he had committed only one of the three prior felony convictions . KRS 532 .080 . There was no distinction in the weight of the evidence of the various convictions . A juror could not reasonably choose to disregard two of the three convictions while choosing to believe the other . "[I]t does not follow that the jury has the right to be capricious and ignore one conviction and believe the other where the convictions are not denied ." Payne, 656 S.W .2d at 721 . Accordingly, the trial court did not abuse its discretion in denying the request for an instruction on PFO in the second degree . As a corollary argument, Appellant urges this Court to reconsider Payne in light of Apprendi v. New Jersey, 530 U .S . 466 (2000) . In Apprendi, the U .S . Supreme Court held that the Fourteenth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt ." Id. at 490. In Kentucky, the jury determines the validity of the prior convictions beyond a reasonable doubt; therefore, no Apprendi violation occurs . See KRS 532 .080 . Directed verdict on persistent felony offender in the first degree

Appellant next argues that the trial court erred in denying his motion for a directed verdict on the PFO in the first degree charge . On a motion for directed verdict, the trial 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 trial 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) . On appellate

review, the test of a directed verdict is whether, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id. A finding of guilt, under KRS 532 .080(3), for PFO in the first degree requires at least two prior felony convictions . Here, Appellant correctly notes that two of the four convictions that the Commonwealth read into the record should have been combined pursuant to KRS 532.080(4) . However, even had the two convictions been combined, the Commonwealth still had three convictions to present to the jury. When considering this evidence in a light

most favorable to the Commonwealth, it was not unreasonable for the jury to infer that Appellant committed at least two of the three prior felony convictions and, therefore, find him guilty of being a persistent felony offender in the first degree . Consequently, the trial court did not err in denying the motion for directed verdict. Voir Dire Appellant argues that the trial court erred in failing to excuse Juror B .T . for cause . A party may complain on appeal where a trial court erroneously denies the party's motion to strike a juror for cause, and the party subsequently exercises a peremptory strike on the juror. See Shane v. Commonwealth, 243 S .W .3d 336, 340 (Ky. 2007) . Later, in Gabbard v. Commonwealth, this Court further explained that, in order to bring a claim under Shane; the party "must identify on his strike sheet any additional jurors he would have struck ." 297 S .W .3d 844, -854 (Ky. 2009) . Prejudice is presumed where at least one of the prospective jurors the party would have struck did, in fact, sit on the jury. Id. at 855 . In such situations, if a trial court denies a defendant's motion to strike the juror for cause and the juror does, in fact, sit on the jury, a party is not required to exercise a peremptory strike to remove the juror in order to complain on appeal . See Thomas v. Commonwealth, 864 S .W.2d 252, 259 (Ky. 1993) . However, the party is still required to exhaust all of his peremptory challenges . Id. Here, Appellant's motion to strike B.T. was denied, and she was later

empanelled on the jury. Further, Appellant exhausted all of his peremptory challenges on other veniremen . Consequently, his claim of error is preserved and will be considered . During voir dire, Juror B .T. indicated that she was the ex-stepmother of Officer Thomas, a witness at trial. Appellant moved to strike Juror B.T . for cause, which the trial court denied. Appellant argues that the trial court erred in failing to excuse Juror B .T . for cause based on an imputed bias, as well as her responses to voir dire questioning . "A determination as to whether to exclude a juror for cause 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 ." King v. Commonwealth, 276 S .W.3d 270, 278 (Ky. 2009) (quoting Pendleton v. Commonwealth, 83 S .W .3d 522, 527 (Ky.2002)) . A court should excuse a prospective juror for cause "when there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence." RCr. 9 .36(l) . The trial court was not required to dismiss Juror B .T. solely because of her previous relationship with Officer Thomas. Although some relationships may impute a bias that may not be overcome, this Court has held that "a party - someone who presumably might have had a close relationship with a party at one time but whose relation by marriage had ended sometime in the past should not necessarily be dismissed for cause." Campbell v. Commonwealth,

260 S .W .3d 792, 800 (Ky . 2008) (citing Ward v. Commonwealth, 695 S .W.2d 404, 407 (Ky. 1985)) . In Ward, a former brother-in-law of the prosecuting attorney was not automatically disqualified from sitting on the jury based on imputed bias . Id. at 407 . Juror B .T.'s stepparent relationship to Officer Thomas had ended completely . She and Officer Thomas' father had divorced in 2003, and she had only seen Officer Thomas once in the past fourteen years. Juror B.T. explained that, even while married to his father, Officer Thomas stayed at his mother's house and never lived with her and his father . She said there were no feelings "at all" between them . Due to the attenuated nature of the relationship, the trial court did not abuse its discretion in rejecting the notion that Juror B .T. was unqualified based solely on her prior relationship with Officer Thomas . Nor did Juror B .T.'s responses render her unqualified . "Prospective jurors are . . . qualified to sit on a case provided reasonable grounds exist to believe they can render a fair and impartial verdict based solely on the evidence adduced ." Maxie v. Commonwealth, 82 S .W.3d 860, 862 (Ky. 2002) (citing Sanders v. Commonwealth, 801 S.W .2d 665 (Ky. 1991) ; Jones v. Commonwealth, 737 S.W .2d 466 (Ky.App . 1987)) . To make this determination, a court should "weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor ." Shane 243 S.W .3d at 338 . Trial judges' decisions must be given deference since they are in the best position to see and hear the jurors' responses . Commonwealth v. Lewis, 903

S .W.2d 524, 527 (Ky . 1995) . Looking at the totality of Juror B.T .'s responses, even in light of her prior relationship with a witness, we do not believe that the trial court abused its discretion in denying Appellant's motion to strike for cause . For the abovementioned reasons, the judgment of the Fayette Circuit Court is hereby affirmed . All sitting . All concur .

COUNSEL FOR APPELLANT : Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General Gregory C . Fuchs Assistant Attorney General Office of Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

,*uyrrmP Courf of ~rnfurkV 2010-SC-000095-MR

RONALD BOCK

APPELLANT

ON APPEAL FROM TODD CIRCUIT COURT HONORABLE TYLER L. GILL, JUDGE NO . 09-CR-00002

V.

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING A Todd Circuit Court jury found Appellant, Ronald Bock, guilty of manufacturing methamphetamine, first-degree trafficking in methamphetamine, first-degree possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, fourth-degree controlled substance child endangerment, and first-degree wanton endangerment . The jury also found him to be a first-degree persistent felony offender (PFO) . For these crimes, Appellant received a thirty-five year prison sentence. He now appeals as a matter of right. Ky. Const. § 110(2)(b) . I. Background In November of 2009, Appellant was tried before a jury in Todd Circuit Court .

At trial, Detective Trace White of the Pennyrile Narcotics Task Force

testified that a search warrant was executed on the residence of Cheryl Britt. While there, officers discovered methamphetamine in a plastic drawer container on the kitchen table in the basement, along with Appellant's wallet and identification . Officers also found "meth-making" ingredients, such as hollowed-out lithium batteries, liquid fire, mineral spirits, a turkey baster, a blender, coffee filters, cans of starter fluid with holes in the bottom, digital scales, glass pipes, and hollowed-out ink pens within the vicinity of the table . Methamphetamine was also discovered on Britt's person. Britt and Ronnie Burns both testified that Appellant stayed in the basement and provided them with methamphetamine . Burns also testified that she had seen Appellant and Jeffrey Sieber making methamphetamine in the basement, as well as selling it to people that came to the residence . Although Sieber confirmed that Appellant provided him and other residents with methamphetamine, he claimed that the basement was a common area . Due to his PFO status, the jury recommended that Appellant's twentyyear sentence for manufacturing methamphetamine be enhanced to thirty-five years, that his ten-year sentence for trafficking in methamphetamine be enhanced to twenty years, that his five-year sentence for first-degree possession of methamphetamine be enhanced to fifteen years, that his five-year sentence for fourth-degree controlled substance child endangerment be enhanced to twenty years, and that his five-year sentence for first-degree wanton endangerment be enhanced to twenty years, to be served concurrently .

The jury further recommended $500 fines for both possession of marijuana and possession of drug paraphernalia. Appellant now appeals, alleging two double jeopardy violations and that the trial court committed reversible error in failing to strike a potential juror for cause . For the following reasons, we affirm. II. Analysis A. Double Jeopardy Appellant argues that his conviction for first-degree possession of methamphetamine should be reversed pursuant to two double jeopardy violations resulting from : (1) his convictions of both manufacturing methamphetamine and possession of methamphetamine and (2) his convictions of both first-degree trafficking of methamphetamine and possession of methamphetamine . Although these alleged errors were not preserved, we address them under the authority of Sherley v. Commonwealth, 558 S .W.2d 615, 618 (1977), overruled on other grounds by Dixon v. Commonwealth, 263 S .W.3d 583 (Ky. 2008) . ("[F]ailure to preserve this issue for appellate review should not result in permitting a double jeopardy conviction to stand") We utilize Blockburger v. United States, 284 U .S. 299 (1932), 1 when addressing questions concerning double jeopardy. Commonwealth v. Burge, 947 S.W.2d 805, 809-811 (Ky. 1996) . In analyzing a double jeopardy claim, we must first determine if the offenses each require proof of an element the other 1 Blockburger has been codified by the Kentucky General Assembly in KRS 505.020.

does not. Beaty v. Commonwealth, 125 S.W.3d 196, 210 (Ky . 2003) (discussing Blockburger, 284 U .S . 299) . Then, we evaluate whether the two convictions are predicated upon the same offense . 1d. at 210-211 . 1 . Double Jeopardy - Manufacturing and Possessing Methamphetamine Relying on our decision in Beaty, Appellant contends that his convictions of both manufacturing methamphetamine and possession of methamphetamine violate double jeopardy because the jury did not distinguish the methamphetamine he was convicted of possessing from that of which he was convicted of manufacturing . We disagree . In Beaty, this Court considered double jeopardy with regard to manufacture and possession of methamphetamine . 125 S.W.3d at 200. Specifically, we deemed possession of methamphetamine to be a lesser included offense within manufacture of methamphetamine under KRS 218A.1432 1432(1)(a)2 because actual manufacture necessarily included a certain period of possession of the manufactured methamphetamine . 1d. a t 211-214 ("The definition of `manufacture,' i.e ., `the production, preparation, propagation, compounding, conversion, or processing of methamphetamine,' obviously contemplates a finished product .") . Because possession was a lesser-included offense within manufacture, we held that .double jeopardy was violated when a defendant was convicted of both manufacturing and possessing the same unit of methamphetamine, but was not violated if the defendant was convicted of 2 KRS 218A.1432 (1) (a) states that a "person is guilty of manufacturing methamphetamine when he knowingly and unlawfully : (a) Manufactures methamphetamine . . ."

manufacturing one unit of methamphetamine and possessing a different unit of methamphetamine . Id. As a result, a jury instruction for manufacture of methamphetamine under KRS 218A.14321432(1)(a) and possession of methamphetamine would need to distinguish which unit of methamphetamine applies to which instruction to prevent a double jeopardy violation . Id. Our decision in Beaty stemmed from a conviction of manufacturing methamphetamine under KRS 218A.1432(1)(a) . Id. at 210 . We acknowledged that we would have reached a different conclusion if we were instead considering a conviction of manufacturing methamphetamine under KRS 218A.1432 1432(1)(b) :3 If Appellant had been charged with not actually manufacturing methamphetamine under KRS 218A.1432 1432(1)(a) but with possessing the chemicals or equipment necessary to do so under KRS 218A. 1432(1)(b), the scenario offered by the Commonwealth would support a conviction under the latter subsection . Id. at 212 (footnote omitted) . In contrast with KRS 218A.1432(1) (a), possession of methamphetamine cannot be considered an element of KRS 218A.1432 1432(1)(b), as guilt is instead predicated upon possession of chemicals or equipment . Because possession of the finished product is not an element of KRS 218A . 1432(l)(b), it therefore cannot be considered a lesser-included offense within KRS 218A. 1432(1)(b) . Accordingly, no double jeopardy issue arises when a defendant is convicted of

3

KRS 218A.1432 1432(1)(b) states that "[a] person is guilty of manufacturing methamphetamine when he knowingly and unlawfully : . . . (b) With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine ."

manufacture of methamphetamine under KRS 218A. 1432(1)(b) and possession of methamphetamine . Consequently, no special distinctions need to be made when a jury is instructed on KRS 218A. 1432(1)(b) and possession of methamphetamine . In this case, Appellant was convicted of manufacturing methamphetamine under KRS 218A. 1432(1)(b) based on his possession, with intent to manufacture methamphetamine, of two or more chemicals for the manufacturing of methamphetamine . As a result, his conviction of both manufacturing and possessing methamphetamine did not violate double jeopardy because his conviction of manufacturing methamphetamine was not based on the methamphetamine found in a plastic drawer container on a kitchen table in the basement . We also reject Appellant's incorrect contention that the jury should have been required to distinguish the methamphetamine Appellant was convicted of possessing from that of which he was convicted of manufacturing because he . The was charged with KRS 218A . 1432(l)(a) rather than KRS 218A.14321432(1)(b) Grand Jury charge stated: [T]he above-named defendant knowingly and unlawfully manufactured methamphetamine or possessed the chemicals or equipment for the manufacture of same with the intent to manufacture methamphetamine by possessing coffee filters, liquid fire, battery strippings, starter fluid, ephedrine, and other items used for the manufacture of methamphetamine, first offense . (Emphasis added) .

While the charge only specifically cited KRS 218A .14321432(1)(a), it invoked the language KRS 218A.14321432(1)(b) . Because the Indictment charged Appellant with violations of both KRS 218A.1432 1432(1)(a) and KRS 218A.1432 1432(1)(b), Appellant's argument is without merit. 2. Double Jeopardy - Trafficking and Possession of Methamphetamine Appellant also contends that his convictions of both trafficking and possessing methamphetamine violate double jeopardy because the jury did not distinguish the methamphetamine he was convicted of possessing from that of which he was convicted of trafficking . We again disagree . As previously discussed, double jeopardy is violated when a defendant is convicted of both manufacturing and possessing the same unit of methamphetamine because possession is a lesser-included offense within manufacture . Beaty, 125 S.W.3d at 211-214 . In Jackson v. Commonwealth, 633 S .W.2d 61, 62 (Ky. 1982), we held that "under our current statutes, possession of a controlled substance is a lesser offense included within the trafficking charge." However, in Commonwealth v. Day, 983 S .W .2d 505, 509 (Ky. 1999), this Court clarified its decision in Jackson by holding that possession is not a lesser-included offense within trafficking when a defendant transfers possession of the controlled substance to a third party: A lesser included offense is one which includes the same or fewer elements than the primary offense. This does not require a strict "statutory elements approach," so long as the lesser offense is established by proof of the same or less than all of the facts required to establish the commission of the charged offense. Appellee admitted transferring the cocaine to Ison on both occasions . Thus, he could not have been convicted ofpossession of a controlled

substance . Any possession which may have occurred prior to the transfer may have been a separate uncharged offense, but was not a fact necessary to prove the charged offense . . . . . While possession of a controlled substance would be a lesser included offense of trafficking under a different factual scenario, such is not the case under the facts presented . . . here . . . . (Citations omitted) (emphasis added) . Aptly relying on our decisions in Beaty and Jackson, the Court of Appeals recognized that possession of marijuana was a lesser included offense within trafficking marijuana, but found no double jeopardy violation because "the charges . . . did not arise from the same incident ." Simpson v. Commonwealth, 159 S .W.3d 824, 827 (Ky. App. 2005) . Notably, Simpson did not come under the purview of Day because the defendant did not transfer possession of the marijuana to a third party . As the Court of Appeals elaborated, "the possession charge stemmed from the marijuana the police found during the patdown of Simpson and the trafficking charge arosefrom the significant amount of marijuana and the digital scales that the police found in the car." Id. at 828 (emphasis added) .4

4

Although unpublished, we also believe it apropos to also explain why Day does not contradict the Court of Appeals' decision in Buck v. Commonwealth, No . 2005-CA002172-MR, 2006 WL 3751348 (Ky. App. 2006) . In Buck, the Court held that double jeopardy prohibited the convictions of possession and trafficking methamphetamine because both were based upon the same evidence . Id. at *6 . Similar to Simpson, the defendant did not transfer possession of the methamphetamine to a third party. Rather, the trafficking charge stemmed from the bag of methamphetamine found at his residence . Id. Accordingly, the Court recognized possession to be a lesser-included offense within trafficking of methamphetamine because possession did not require proof of an additional element that is not found in trafficking . Id. at *7.

Turning to the present case, Britt, Burns, and Seiber testified that they previously received methamphetamine from Appellant . Burns also testified that she saw Appellant sell methamphetamine to persons who came to the back door of the residence . Furthermore, Detective White testified that methamphetamine was discovered on Britt's person upon execution of the search warrant . This evidence formed the basis of the trial court's instruction of first-degree trafficking of methamphetamine : You will find the Defendant, RONALD BOCK, guilty of First Degree Trafficking in a Controlled Substance: Methamphetamine under this instruction if, and only if, you believe the evidence beyond a reasonable doubt all of the following: A. That in Todd County on or about the 20th day of November 2008, the Defendant transferred a quantity of Methamphetamine to Cheryl Britt, Ronnie Burns, or Jeffrey Sieber; AND B. That he knew the substance being so transferred was Methamphetamine . The trial court, though, did not specifically identify the particular methamphetamine Appellant was found to have possessed : You will find the Defendant, RONALD BOCK, guilty of 1St Degree Possession of a Controlled Substance : Methamphetamine under this instruction if, and only if, you believe the evidence beyond a reasonable doubt all of the following: A. That in Todd County on or about the 20th day of November 2008, the Defendant possessed a quantity of methamphetamine, AND B . That he knew the substance so possessed by him was Methamphetamine .

In contrast to the Court of Appeals' decision in Simpson, the trafficking charge against Appellant arose from his transfer of methamphetamine to Britt, Burns, or Sieber. Because the evidence showed that Appellant transferred possession to third parties, this case instead more closely parallels our decision in Day.

Possession of methamphetamine was thus not a fact necessary for

proving the offense of trafficking methamphetamine and, likewise, could not be considered a lesser-included offense in this case . As a result, the trial court did not need to specifically identify the particular methamphetamine Appellant was found to have possessed .5 Because the jury instructions did not necessitate further specificity, Appellant's convictions of both possession and trafficking did not violate double jeopardy. B. Jury Selection Appellant finally argues that that the trial court erred when it overruled his motion to strike a juror, forcing him to use his peremptory challenge . Specifically, he alleges that Juror J.C . should have been stricken for cause after he expressed strong feelings about his nephew's drug addiction and attendant legal problems . Appellant preserved this error by moving to excuse the juror and by exhausting all of his peremptory challenges .6 5

6

We note that, as in Commonwealth v. Day, possession of the methamphetamine by Appellant prior to the transfer may have been a separate uncharged offense. 983 S .W .2d 505, 509 (Ky. 1999) . Our review of the record does not show that Appellant set forth the names of other jurors he would have stricken as is now required . See Gabbard v. Commonwealth, 297 S .W.3d 844, 853 (Ky. 2009) (outlining error preservation in this area) . 10

The Commonwealth responds that the trial court did not abuse its discretion by denying Appellant's motion to strike because J .C . did not provide any reasonable grounds to believe he could not render a fair and impartial verdict . We agree. During voir dire, the trial court asked if there was anyone who had been involved, or had anybody close to them involved, in a case any of the attorneys had participated in . J.C . indicated affirmatively to the question and the trial court asked that he, along with the prosecutor and defense counsel, approach the bench . At the bench conference, the following exchange occurred: Judge : Which one of the attorneys have you had dealings with? Juror: I think Ms . Guiling may have prosecuted my nephew James Coots. Judge : Okay, and Juror: Drug charges Judge: About how long ago? Juror : I'm not, it's been about a year ago . Judge : About a year ago, okay Juror: But I'm not certain. Judge : What was the outcome of that, do you know? Juror: He's a, he was guilty . He's guilty . However, this rule only applies to cases tried after finality of our decision in Gabbard. Paulley v. Commonwealth, 323 S.W.3d 715, 720 (Ky. 2010). Gabbard was rendered on October 29, 2009, but did not become final until November 19, 2009 . See 297 S .W.3d at 844 ; See also CR 76 .30(2)(a) ("An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition . . .") . As a result, Appellant preserved this error via his timely motion to strike for cause because his trial began on November 2, 2009, well before finality of Gabbard.

Judge : Okay, and, uh, did you, in the course of that, did you develop any strong feelings one way or another about Ms. Guiling? Juror: No. Judge: Did anything happen in that matter that might Juror : I'm not even certain that she was, but he was a, he's persistent felon, or, you know, persistent Prosecutor: Which court would that have been in? Juror: It'd have been here, I believe it was here Judge: Do you know what the outcome was as far as what his sentence was? Juror: He had to go to rehab and he was possibly going to, uh, prison . Judge : Okay. Alright. Uh, in the course of that did you develop any strong feelings about anyone in the court system or any of the attorneys? Would anything about that interfere with your ability to logically and, I will tell you that I haven't mentioned what this case is about but it is a drug charge, uh, related to methamphetamine . Would anything about that interfere, your experience with your nephew, uh, would that interfere with your ability to logically and fairly listen to the evidence in this case? Juror: Well, I have strong feelings about his personal use, so, not really, but I do have firsthand knowledge of it Judge : Firsthand knowledge of who? Juror : Of his addiction to it and stuff, so it's Judge : Of who's addiction to it? Juror: My nephew's . Judge : Okay. Alright, now your nephew's not on trial, okay . Juror: I understand. I'm just saying it was, uh, it was a, it was a little family turmoil, but no I wouldn't have any .

Judge: Do you know Mr. Bock? Juror : No . Judge : Okay . Would anything about, uh, about your experience with your nephew interfere with your ability to logically and fairly determine whether or not Mr. Bock was guilty of a drug related charge? Juror: No. Judge : Would anything about that interfere with your ability, if he were to be guilty, and it was, it became the duty of the jury to set a penalty, would anything about that interfere with your ability to consider the full range of penalty from the highest to the lowest and everything in between? Juror: No. Judge : Any questions from counsel? Defense : You developed strong feelings, could you elaborate a little bit on that? Juror: I just, uh, it was a lot of emotional stuff in the family about him using drugs and stuff like that, and, you know, it just, it just strong personal feelings in the family. Defense : Is it fair to say when you hear discussion of drug activities, that something that comes to mind, those strong feelings come back? Juror: Yeah, well, they're there, but I'm not, I wouldn't think I would make a decision based on that . Defense : Would it be fair to say that that might be something you'd be thinking about today when you're hearing evidence about drug activity and things of that nature? Juror: Possibly . Judge : Possibly what now? What was the question, I'm sorry? Defense : I asked if during the trial today if he would be thinking

about the incidents with his nephew and he said "possibly." That it was fair. Judge : Okay. Prosecutor: I believe I remember your Judge : See if you can find our indictment on that please. Prosecutor : Your nephew's charges, that was prescription medication, is that correct? Juror: That was [unintelligible] . Prosecutor: Are your, uh, strong feelings, I mean, before this [with] your nephew, did you, drugs are often something that bring out strong feelings in people, is it intensified any because of your nephew? Juror: Not really, I've just, you know, no, it wouldn't be intensified . Judge : Okay. Any other questions? Defense : So you're saying that you feel the same way now about drug use as you did before your nephew was prosecuted? Juror: I do. Defense : So your feelings didn't become strong or more Juror: I don't know they ain't stronger. They're not any stronger. Defense : (talking over) more emotions Judge : Any other questions? Prosecutor: Did you develop any intense feelings, whether positive or negative, toward either the Commonwealth or the defense? Juror: No . Prosecutor: In your nephew's case? Juror : No, not at all.

(Emphasis added) . At the conclusion of this exchange, the court denied Appellant's motion to strike J .C. for cause. Trial courts possess "broad discretion to determine whether a prospective juror should be excused for cause." Mabe v. Commonwealth, 884 S.W.2d 668, 670 (Ky. 1994) . As such, we review these. decisions for abuse of discretion . Adkins v. Commonwealth, 96 S .W.3d 779, 795 (Ky. 2003) . However, RCr 9 .36(1) provides no room for a trial court to seat a juror who demonstrates his or her inability to be fair, as a motion to strike for cause must be granted "[w]hen there is reasonable ground to believe that . . . [a] juror cannot render a fair and impartial verdict on the evidence ." Furthermore, failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an unbiased jury, constitutes the denial of a substantial right and can therefore never be deemed harmless error: This Court has granted the use of peremptory strikes to a party and made it mandatory for trial courts to excuse biased jurors for cause when a reasonable person would view the juror as biased . Not removing a biased juror from the venire, and thereby forcing a defendant to forfeit a peremptory strike, makes the defendant take on the duty of the court and prevents him from getting the jury he had a right to choose . This violates a substantial right accorded great weight in our legal history, and can never be harmless error . Shane v. Commonwealth, 243 S .W.3d 336, 343 (Ky . 2007) . Again, "[i]t is the probability of bias or prejudice that is determinative in ruling on a challenge for cause." Richardson v. Commonwealth, 161 S .W.3d 327, 330 (Ky. 2005) (quoting Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky. 1958)) . Trial courts, then, are charged with a duty to "weigh the

probability of bias or prejudice based on the entirety of the juror's responses and demeanor ." Shane, 243 S.W.3d at 338 (emphasis added) . In Richardson, a case involving allegations of rape, sodomy, and sexual abuse, we affirmed the trial court's refusal to remove a juror for cause after she disclosed that she had been the victim of sexual abuse fourteen years earlier. 161 S .W.3d at 328, 330 . Other than admitting that she had been the victim of a sex crime, the juror made no statements indicating that she had any bias or preconceived opinions of the appellant's case and unequivocally confirmed that she could fairly and impartially render a decision . Id. at 330-31 . Accordingly, we could not conclude that the trial court abused its discretion in refusing to remove the juror for cause because she satisfied the court that she could objectively evaluate the evidence on all counts and render a fair verdict . Id. a t 331 . Turning to the present case, we note that the trial court was in the best position to evaluate the entirety of J .C .'s responses and demeanor . With this in mind, we cannot say that the trial court abused its discretion in refusing to remove him for cause . Similar to Richardson, J .C. also satisfied the court that he could objectively evaluate the evidence on all counts and render a fair verdict by stating that his feelings regarding drug use had not intensified as a result of his nephew's usage and that his nephew's usage would have no effect

on his ability to listen to the evidence and render a fair and logical decision based on it. 7 Because the trial court properly assessed whether J .C. could render a fair and impartial verdict on the evidence, it did not abuse its discretion in refusing to strike for cause . III. Conclusion For the foregoing reasons, Appellant's convictions and sentences are affirmed . All sitting. All concur . COUNSEL FOR APPELLANT : Shelly R. Fears Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601-1133 COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason Bradley Moore Assistant Attorney General Office of Criminal Appeals Attorney General's Office 1024 Capitol Center Drive Frankfort, KY 40601-8204 Furthermore, if we did not presume a sexual abuse victim to be biased for purposes of a case involving rape, sodomy, and sexual abuse in Richardson, 161 S .W.3d 327, it would be difficult to then deem the uncle of a drug convict presumptively biased. See, e.g., Ratliff v. Commonwealth, 194 S .W.3d 258, 266 (Ky. 2006) ("None [of the jurors] disclosed relationships or circumstances tantamount to those from which this Court has presumed bias .") . 17

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION .

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

,$upreme (fourf of `rnfurkV 'Pt 2008-SC-000798-MR PATRICK ALLEN WATKINS

V.

APPELLANT

ON APPEAL FROM CLARK CIRCUIT COURT HONORABLE GARY D . PAYNE, JUDGE NO . 07-CR-00051-001

COMMONWEALTH OF KENTUCKY

APPELLEE AND

2008-SC-000823-MR JOY RENEE WATKINS

V.

APPELLANT

ON APPEAL FROM CLARK CIRCUIT COURT HONORABLE GARY D . PAYNE, JUDGE NO . 07-CR-00051-002

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN PART Appellants, Patrick and Joy Watkins, were found guilty by a Clark Circuit Court jury of wanton murder. For these crimes, Appellants were sentenced to life imprisonment . They now appeal their convictions as a matter of right. Ky. Const. § 110(2)(b) .

I. BACKGROUND In the spring of 2007, Patrick and Joy Watkins resided in Winchester, Kentucky . The couple was married and had two young children together . The Watkinses had also obtained legal custody of young Michaela Watkins, Patrick's daughter from a previous marriage . Michaela was twelve years old and had been in foster care after being removed from her biological mother's custody due to severe abuse and neglect . Michaela later died a tragic death. The relevant facts are as follows . At 3 :56 p.m. on Sunday, March 11 ; 2007, Patrick called his sister, Stephanie Radar, and asked her to come to his apartment. When Stephanie and her husband arrived, Patrick indicated that something was wrong with Michaela. After Stephanie asked Patrick where Michaela was, he initially responded, "[s]he's in there on the bed asleep ." Patrick soon admitted that Michaela was not asleep but dead, explaining that she had fallen down the stairs some forty-five minutes earlier . Stephanie did not believe him because "[i]t looked like she had been beaten to death." Patrick stated that he "needed his family" and that "he was going to jail ." In response to Radar's 911 call, paramedic Gary Conn soon arrived on the scene and found Michaela lying on her bed with a blanket draped over her body . As Conn was examining Michaela, Patrick appeared at the door and Conn asked him what had happened . Patrick again responded that Michaela had fallen down the stairs an hour earlier. Conn, however, did not believe that

her injuries were caused by such a fall, nor did he believe that Michaela had only been dead for an hour. He noted that she was cold to the touch, rigor mortis had set in, and lividity was present . When Sergeant Frick asked what happened, Patrick similarly responded that Michaela had fallen down the stairs and that, afterward, she went to her bedroom. Sergeant Frick discovered Michaela with "a bruised face like 1 have never seen before." Detective Hall began his investigation at the scene and Patrick gave the same explanation . He viewed Michaela's body and observed pattern bruising on her face, a bite mark behind her ear, a bite mark on her left ankle, and significant burns on her legs . He noticed that the burn marks went straight down the back of her legs, indicating that she had likely been held down in hot water, that her heels had unbroken blisters, indicating that she likely did not walk afterwards, and that there were no splash marks on her body, indicating that the burns were not accidental . Patrick and Joy stated that Michaela had burnt herself the previous night while taking a bath. Based upon all the evidence, deputy coroner Dr. Hamon believed that Michaela died between four and six hours earlier (between 11 :15 a.m. and 1 :15 p.m.), that she did not die in bed but was placed there, and that her injuries were not self-inflicted . The testimony of medical examiner Cristin Rolf figured prominently into trial. Dr. Rolf identified dozens of bruises and abrasions to Michaela's head, as well as a broken vertebrate and bleeding around her spinal cord. Michaela

suffered at least second-degree burns on the backs of her legs, buttocks, vagina, and feet, and the skin was removed in spots. There was a well-defined line where the tissue was burned, while the balls of her feet and toes were not burned . Dr. Rolf believed that someone either held Michaela in hot water or that she was too weak to move . Notably, Dr . Rolf discovered that Michaela had a large bruise on the left side of her chest. Under the bruise, her ribs were fractured (five in particular were crushed and compressed into other bones), and the left lung was partially collapsed - known as a "flailed" chest injury, causing significant pain and difficulty breathing . Though Dr. Rolf was unable to determine the exact cause of the chest injury, she believed that it was likely brought about by a forceful, high velocity blow or blunt impact. Dr. Rolf concluded that all of Michaela's injuries occurred within thirtysix hours and that they were neither self-inflicted nor caused from a fall down the stairs . She believed that the flailed chest was the cause of Michaela's death, though noting that the blunt impacts to her head, trunk, and extremities could have also contributed . Dr. Rolf also noted that Michaela had burns covering her lower extremities and testified that "with the removal of the skin, a person can become infected and die easily-very quickly-if it's not treated ."

Joy gave several taped police statements .' Though initially reluctant to offer much detail, Joy admitted that, on Saturday morning, she placed her entire body weight on the child, restraining her, and hitting her in the face .2 At that point, Michaela urinated on herself, which temporarily stopped the abuse . Both Joy and Patrick then ordered Michaela to bathe. Joy maintained that she did not know who ran the hot water causing Michaela's burns, but that she ran upstairs to the bathroom after hearing Michaela scream and saw Patrick standing in the hallway. Michaela proceeded to fall three times and strike her head (twice in the bathroom and once down the stairs) . Michaela's legs were later bandaged and ointment was applied to her burns . Joy noticed that the skin was peeling on Michaela's heels and she asked Patrick whether they should take Michaela to the hospital, but he responded that she would be okay. Patrick carried Michaela downstairs where she ate dinner and watched television . According to Joy, Michaela awoke the next morning and ate breakfast but was acting strangely. She stated that Michaela vomited and began to fall down and lurch over at times. The family soon left the apartment and drove to Red River Gorge for a family picnic . Joy maintained that Michaela was alive during the drive to the Gorge . Contradicting prior statements, Joy stated that, once there, Michaela was not feeling well and that she stayed in the car while the other children ate and Patrick and Joy gave taped statements to police, all of which were played for the jury. Neither testified at trial. 2 Joy admitted to occasionally biting and backhanding Michaela "really hard."

played . Several times throughout the day, Joy stated that Michaela was in need of medical attention . She claimed that Patrick refused to take Michaela to a hospital because he suspected that Michaela was trying to manipulate them and because he was fearful that Joy's prior acts of physical abuse would be discovered . On the drive back to Winchester, Michaela was unresponsive and Joy was upset . When they arrived home sometime before 3:00 p .m., Patrick carried Michaela to her bedroom before returning to Joy and stating that something was wrong. Patrick offered less information to police and his account diverged from Joy's in several ways . According to Patrick, it was Michaela that had filled the tub with scalding hot water and burned herself. Patrick maintained that Michaela was later able to walk down the stairs and eat dinner with the family. On the way home from the Gorge, he noticed that Michaela's hands were cold . When the family returned home, Patrick claimed that Michaela walked into the apartment. It was then that Michaela allegedly fell down an entire flight of stairs and hit her head before going to bed. When Patrick went to check on her thirty to forty-five minutes later, he found Michaela lying in her bed unresponsive and not breathing . Patrick . admitted that a "mistake" was made in failing to take Michaela to the hospital . When confronted with Joy's statement that she found him upstairs after hearing Michaela scream, Patrick announced he had nothing else to say.

At trial, Appellants argued that their culpability, if any, did not rise to the level of wanton murder. Patrick maintained that Michaela had burned herself, that he had never witnessed Joy physically abuse Michaela, but that he neglected to take her to a hospital or otherwise obtain medical assistance . While Joy admitted that she, too, should have sought medical assistance for Michaela, she claimed that she did not intentionally or knowingly cause Michaela's fatal chest injury, and that she did not know who had run the hot bath water . At the conclusion of trial, the jury found Appellants guilty of wanton murder, fixing their punishment at life imprisonment . On appeal, Appellants raise several allegations of error in their underlying trial. Due to the improper hearsay used against him, we reverse Patrick Watkins' conviction, but affirm Joy Watkins'. II. ANALYSIS A. Right of Confrontation : Statements Appellants argue that their Sixth Amendment confrontation rights were offended when the trial court permitted the Commonwealth to introduce their police interviews without redaction, limiting admonition, or opportunity for cross-examination . Puzzlingly, the Commonwealth contends that the "statements exculpated both of the Watkines, rather than incriminating either of them."

Prior to trial, Appellants filed a motion arguing that, absent an opportunity for her cross-examination, the Confrontation Clause prohibited their unredacted, out-of-court statements to be admitted at trial. The motion was continued several times and, ultimately, never heard or ruled upon until the Commonwealth attempted to play the police interviews for the jury. In response to a defense objection, the Commonwealth insisted that during the interviews, Appellants simply did not incriminate one another and thus redaction was not required. The trial court briefly reviewed, in camera, the partial transcripts tendered before overruling the objection. Having reviewed the statements, we find error with respect to both Patrick and Joy; but, pertaining to Joy, we hold the error was harmless . At the outset, we note that though Patrick's brief cites Crawford v. Washington, 541 U .S. 36 (2004) in support of his contentions here, the nature of his argument indicates that his allegation of error rests not on Crawford, but, rather, on Bruton v. United States, 391 U .S . 123 (1968) - i.e., that Joy's unredacted statements incriminated him.3 Crawford held that "the Confrontation Clause of the Sixth Amendment forbids admission of all testimonial hearsay statements against a defendant at a criminal trial, unless the witness is unavailable and the defendant has had a

3 In his original motion in limine before the trial court, Patrick cited Bruton and the Commonwealth, noting this "curiosity" responded in its brief to both Crawford and Bruton .

prior opportunity for cross-examination . 114 Bray v. Commonwealth, 177 S .W.3d 741, 743 (Ky. 2005) (emphasis added) (citing Crawford, 541 U .S. at 68) ; see also Rankins v. Commonwealth, 237 S .W.3d 128, 130 (Ky. 2007) ("Returning to the Framers' intent, Crawford held that the Sixth Amendment prohibits the admission of the testimonial statement of a declarant who does not appear at trial, unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination ."). "In the context of a joint trial, therefore, `the pretrial confession of one [defendant] cannot be admitted against the other unless the confessing defendant takes the stand."' Rodgers v. Commonwealth, 285 S.W .3d 740, 745-46 (Ky. 2009) (quoting Richardson v. Marsh, 481 U .S . 200, 206 (1987)) . Before Crawford may apply at all, the hearsay at issue must be considered "testimonial" in nature . As we explained in Rankins, the holding in Crawford concerns "`testimonial' statements, because it is statements of a testimonial character, as opposed to other hearsay, which cause the declarant to be a witness against the accused for purposes of the Confrontation Clause ." 237 S .W .3d at 130 (citation omitted) . At a minimum, testimonial hearsay encompasses "prior testimony at a preliminary hearing, before a grand jury, or at a former trial" or statements made during "police interrogations ." Crawford, 541 U.S . at 68 . In general, hearsay may be "testimonial when the

4

The Court in Crawford explicitly noted that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted" - i .e ., non-hearsay uses . 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S . 409, 414 (1985)) .

circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U .S . 813, 822 (2006) .5 However, "Crawford and its progeny do not address the use of a prior testimonial statement against the declarant himself," which is the question addressed in Bruton and its progeny.6 Rodgers, 285 S.W.3d 746 . Therefore complementing the protections in Crawford is the holding in Bruton, wherein the Supreme Court of the United States "held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's 5

The Court in Crawford added: Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Melendez-Diaz v. Massachusetts, 129 S .Ct . 2527, 2531 (2009) (quoting Crawford, 541 U .S . at 51-52) .

6 Generally speaking, a statement is "against" a defendant for purposes of the Confrontation Clause only if [the] testimony is part of the body of evidence that the jury may consider in assessing his guilt. Therefore, a witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the defendants will not be considered to be a witness "against" the other defendants [unless it is incriminating pursuant to Bruton] . Cruz v. New York, 481 U.S . 186, 190 (1987) (emphasis added).

10

confession [implicating] him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant." Richardson v. Marsh, 481 U.S . 200, 202 (1987) (summarizing the Bruton rule) ; see Bruton, 391 U.S . at 137 ("[1]n the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination . The effect is the same as if there had been no instruction at all .") . Yet, given certain conditions, a joint trial may be had: "[i]f . . . the [nontestifying co-defendant's] confession is redacted so as to remove all reference to the co-defendant's), including obvious inferential references, then the confession may be admitted against the confessor," Rodgers, 285 S.W .3d at 746 (citing Richardson, 481 U.S . at 206 ; Gray v. Maryland, 523 U.S . 185 (1998)), "if a limiting instruction is given to admonish the jury not to consider the [confession] as evidence against any defendant other than the [confessor] ."7 Commonwealth v. Stone, 291 S .W.3d 696, 700 (Ky. 2009) (citing Richardson, 481 U.S . at 207-08) ; but see Shepherd v. Commonwealth, 251 S .W.3d 309, 314 (Ky. 2008) ("In accordance with Gray v. Maryland, 523 U.S. 185, 195 . . . (1998) and Stanford v. Parker, 266 F.3d 442, 457 (6th Cir. 2001), this Court has extended slightly the protections of Bruton, holding that redacted confessions which merely delete the name of the other defendant or insert the phrase `other party' or `deleted' also constitute a Bruton violation because the We restate that the court need only "give the limiting admonition `upon request."' Barth v. Commonwealth, 80 S.W.3d 390, 397 (Ky. 2001) ; see also Caudill v. Commonwealth, 120 S.W.3d 635, 658 (2003) .

statements still facially incriminate the co-defendant .") (citing Barth, 80 S.W .3d at 395 (Ky. 2001)) ; Stone, 291 S.W.3d at 701 ("When the purpose of the statement is to incriminate the non-declarant, a Bruton redaction makes no sense . In that situation, Crawford must be considered .") . 8 1 . Patrick's Bruton Challenge to Joy's Statements Turning to Patrick's arguments here, he identifies seventeen different statements that Joy made in police interviews that, he contends, incriminated him. We have reviewed the statements and conclude that the following were properly admitted without redaction. When asked whether Joy saw Patrick hit Michaela, Joy replied, "[i]f he did, then I don't know why, and I didn't see it and that's the honest to God's truth . I'm just saying I did not see it . . . Is it possible that he did? I'm not saying it's not possible ." At another point in the interview, Joy was again asked to explain what happened during Michaela's bath: "Now as far as Michaela goes, am I saying my husband didn't hold her in the bath? I'm not saying he did . I'm not saying he didn't . . . . It is possible s In Rodgers, we also noted: Where a jury hears a non-testifying co-defendant's statement to be considered only against that particular defendant/ declarant, both the redaction and the limiting instruction . . . insure compliance with Crawford, i.e., facially incriminating matters are removed and even if inferentially incriminating statements remain the admonition is presumed to be followed so that the testimonial hearsay is not being used against the defendant(s) who did not make the statement. [Therefore, t]he combination of redaction and limiting instruction satisfies Crawford. 285 S.W.3d at 747; but see Stone, 291 S.W.3d at 697-701 (Crawford implicated when redacted confession of co-defendant explicitly used against defendant) . 12

that he did, I'm not saying it's not possible ." Joy also made several statements regarding the family's trip to Red River Gorge and other events occurring on the day Michaela died, including, "Was she unresponsive in the car on the way back from the Gorge? Yes, she was." And, "[i]t felt to me like she had a heartbeat, but I wasn't sure ." In response the question asking whether Joy knew Michaela was dead, Joy stated "I didn't know for sure, like I told you earlier, I was not positive, I was driving . . . I suspected something was not right . . . something was very serious [sicl wrong." Finally, when the group arrived home from the Gorge, Joy stated that she, "came in and got the little ones some juice and they went upstairs to play." In none of these statements can it be said that Joy expressly or implicitly incriminated Patrick in Michaela's death . However, we conclude that the following statements were improperly admitted and should have been redacted in order to protect Patrick's right of confrontation under Breton. In her statements, Joy indicated that Patrick was upstairs with Michaela alone when she was burned in the bath tub: Yeah, [Patrick] was upstairs at some point in time. I do know that. I don't know what for. When I went upstairs, I tried to help get her out of the bathtub and she flopped backwards before anybody could grab her . I asked [Patrick] what happened and he said, "I guess the water's too hot ." Does he feel responsible? Yeah, I think he does feel responsible . I'm not going to lie to you. Though not specifically identified, Joy's related statement to the effect that she found Patrick in the upstairs hallway after hearing Michaela scream should

13

have also been redacted. In addition, Joy assigned knowledge to Patrick that Michaela was grievously injured and in need of medical attention and explained that Patrick, in response, did nothing: I told my husband that I thought she needed to go to the hospital . I did . That's when I told him that we needed to get something to put on her feet. So he gave me the money and I went down and got that and I came back and then I told him later on that we probably need to take her to the hospital . He said "No . She'll be fine ." She said, "Can I lay down?" and I said, "Yeah, you can lay down." So she laid down for a minute and when she laid down and stretched out, I noticed the skin on her heels peeling . And that's when I told her dad, I said, "Maybe we should take her to the hospital ." And the reason he didn't want to take her to the hospital wasn't to protect himself. I think it was to protect me because of the bruises on her face . Later on that night, I told my husband, I said, "Are you sure?" She hadn't complained of hurting and I said, "Are you sure we shouldn't take her to the hospital?" And he said, "I think she's fine . She's just trying to use it as a way to manipulate us ." I said, "Okay." When I went in that morning is when I stressed how important it was that I thought we needed to take her to the doctor because that's when I realized how bad her skin was peeling . I don't even recall what my husband said at the time . I just know that we just didn't go to the doctor . All we kept saying back and forth to each other [sic], "Is she okay? What should we do? Where should . we go? What should-" that's all we kept saying . I think we just went home and said, "let's see if she's all right," and once we got home and about an hour in, we realized that . . . after he got her in and we got her to the bedroom and she was in there I don't know how long and she hadn't moved and that's when we really realized, no, she's gone . At that point, yeah, I knew something was definitely, he told me 14

that he went in to check on her and he said she wasn'tsomething wasn't right. He just said, "She's not right. I don't think she's breathing ." All the way back to Winchester, we both just [sic] there and we kept . . . "Is she alive?" I mean we were literally in shock. Furthermore, when asked why she did not seek medical treatment for Michaela, Joy responded : I guess because Patrick was so panicky and scared . He was worried about our kids and worried about them being taken away . That's where I made my mistake and I told you that earlier . And subsequently, when asked why someone did not call for an ambulance after Patrick stated that he did not think Michaela was breathing, Joy stated, "I don't know. I just did what-I was just doing what I was told to do." That these statements were especially incriminating cannot be questioned when one of the three theories of wanton murder expressed in the jury instructions was that Patrick "fail[ed] to provide medical treatment or aid for [Michaela's] resulting injuries ." These statements directly inculpated Patrick, thus we cannot conclude that they were cumulative evidence or harmless error. Rather, this is a blatant situation "where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial ." Breton, 391 U .S . at 135-136 . Because the Commonwealth disregarded a basic tenet of constitutional law-the Breton rule-by forging ahead and introducing Joy's unredacted and inculpatory statements, we have no choice but to reverse .

15

Since we are reversing Patrick's conviction, we address, at the conclusion of this opinion, his remaining allegations of error only to the extent that they are likely to recur on retrial . 2 . Joy's Bruton and Crawford Challenge to Patrick's

and Other Witness' Statements

Joy, too, argues that her Sixth Amendment confrontation rights were offended when the Commonwealth was permitted to introduce Patrick's police interview without redaction, limiting admonition, or opportunity for cross examination . Having reviewed Patrick's statements that were played for the jury, we agree, but find that the error harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S . 18, 24 (1967) ; Heard v. Commonwealth, 217 S .W.3d 240, 244 (Ky. 2007) ("It must not be overlooked that `before a

federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt."') (quotation omitted) . Save one reference, Joy's wholesale objection to Patrick's interview as offending Bruton lacks merit. Patrick stated : "Obviously there was a mistake made because we didn't take [Michaela] to the doctor, for one. That was a mistake, for one . That was made." (Emphasis added) . Joy, however, fails to show how this reference prejudiced her when she admitted that she knew

something was wrong and that she should have taken Michaela to a hospital for medical treatment .

16

Joy contends that Patrick's statements nevertheless constituted testimonial hearsay in violation of Crawford . While Patrick's statements were most assuredly testimonial in character, Joy offers no credible argument for how his statements prejudiced her but merely asserts that Patrick's denials and explanations were so implausible in the face of contrary forensic evidence that she, too, was somehow tainted. Next, Joy takes issue with statements that Patrick made to Conn, Hall, Frick, and Stephanie Radar. At the scene, Patrick proffered the same explanation to Conn, Sergeant Frick, and Detective Hall regarding Michaela's cause of death: that she had fallen down the stairs some thirty to forty-five minutes prior to their arrival. In the 911 call placed by Radar, Patrick can be heard in the background stating that Michaela had burnt herself, fallen out of the bathtub and again down the stairs, along with a similar chronology of the days' events he would later give during his police interview . Joy argues that these statements, which were met with skepticism, somehow prejudiced her. While none of these statements facially incriminated her, Joy again asserts that their admission violated Crawford. We find no manifest injustice . 9 Even assuming that there was no ongoing emergency and Patrick's statements were testimonial hearsay, Joy

9

Introduction of the statements was not objected to at trial and thus the errors are not preserved. Joy, however, requests palpable error review. This Court has held that "an unpreserved error may be noticed on appeal only if the error is `palpable' and `affects the substantial rights of a party,' and even then relief is appropriate only 'upon a determination that manifest injustice has resulted from the error.' Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting RCr 10 .16) . "An unpreserved error that is both palpable and prejudicial still does not justify relief 17

provides no compelling reason as to why such error should not be recognized as harmless beyond a reasonable doubt, which it is . B . Right of Confrontation : Lab Reports Joy next contends that it was

a violation of Crawford,

and more

specifically, its most recent incarnation, Melendez-Diaz, for the Commonwealth to admit various lab reports when their authors did not testify at trial so as to permit cross-examination . Melendez-Diaz v. Massachusetts, 129 S .Ct. 2527 (2009) . We agree, but also find such error to be harmless. At trial, Dr. Rolf, the assistant medical examiner, testified that she utilized two other experts, a dentist and a neuropathologist, in formulating her autopsy report. Near the conclusion of Dr. Rolfs direct examination, the Commonwealth moved to introduce her autopsy report as well as the dentist's report and neuropathologist's report . Joy objected and argued that the Confrontation Clause forbids these additional reports from being received into evidence because the individuals who prepared them were not available for cross-examination . In response, the Commonwealth argued that Dr . Rolf was present when the dentist and neuropathologist performed their examinations and that her autopsy report thus incorporated those reports . The trial court overruled the objection, finding that Dr. Rolf had appropriately relied upon the reports . unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be `shocking or jurisprudentially intolerable."' Id . (quoting Martin v. Commonwealth, 207 S .W .3d 1, 4 (Ky. 2006)). 18

As detailed above, the Sixth Amendment provides a criminal defendant with the "right . . . to be confronted with the witnesses against him," and when the prosecution seeks to introduce testimonial hearsay, the right to cross examination . The Supreme Court of the United States recently considered the applicability of the Confrontation Clause to "affidavits reporting the results of forensic analysis ." Melendez-Diaz, 129 at 2530 . In that case, Melendez-Diaz was charged with. distributing cocaine, and, at his trial, the prosecution introduced three "certificates of analysis," prepared by state-employed analysts, concluding that the substance he possessed was cocaine . Id. at 2530-31 . The Court held that the admission of these certificates violated the Confrontation Clause, as Melendez-Diaz was unable to confront the analysts who prepared these certificates, i .e., the witnesses against him . Id. at 2532 . The High Court further explained that "the `certificates' are functionally identical to live, incourt testimony, doing `precisely what a witness does on direct examination:"' declaring that the substance found in Melendez-Diaz's possession was cocaine. Id. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, (2006)) . Finally, the Court held that the prosecution failed to satisfy Crawford's dictates, since it could not "sho[w] that the analysts were unavailable to testify at trial and that [Melendez-Diaz] had a prior opportunity to cross-examine them ." Id. at 2532 . With the above framework in mind, we conclude here that the trial court erred when it admitted the dentist's and neuropathologist's reports . Neither

medical professional testified at trial, thereby depriving Joy of her constitutional right "to be confronted with the witnesses against [her] ." Rather, like Melendez-Diaz, she was forced to accept, without question, the substance and accuracy of the dentist's and neuropathologist's reports .

Furthermore,

the Commonwealth failed to show that the dentist and neuropathologist were unavailable to testify and that Joy had a prior opportunity to cross-examine them. However, as previously stated, although we find error here, such error was harmless beyond a reasonable doubt .

See Chapman v. California, 386

U .S . 18, 24 (1967) ; Heard v . Commonwealth, 217 S.W .3d 240, 244 (Ky . 2007) (detailing the harmless error standard for examining constitutional errors) . The dentist's report, which performed a bite mark analysis, was introduced apparently as evidence that Joy bit Michaela. We conclude this report is harmless given Joy's admission that she did bite the victim. Next, the neuropathologist's report is also harmless, as it was extraneous to Commonwealth's theories-beating, scalding, or failing to medically treat regarding the method of wanton murder. 10 Notably, Joy fails to present any argument addressing the alleged prejudicial effect, apparently content to call it

to Joy makes several passing, detached statements regarding the admission of the toxicology tests on the victim's blood and urine. Those tests revealed the presence of an antidepressant, a mood-controlling drug, and Tylenol . It is unclear whether she specifically objected and preserved this error. Nonetheless, for the same reasons as above, namely, that the evidence is not related to the Commonwealth's theories of wanton murder, any error is harmless beyond a reasonable doubt .

20

to our attention. Therefore, after examining the evidence, we conclude that there is no reasonable possibility that this error contributed to her conviction . C. JuryInstructions 1. Unanimous Verdict Joy next contends that, pursuant to Section 7 of the Kentucky Constitution, she was denied the right to a unanimous verdict because the jury instructions, as presented, permitted her murder conviction on theories unsupported by the evidence . The wanton murder" instruction under which she convicted read : You will find [Joy] guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county on or about the 11th day of March, 2007, and before the finding of the Indictment herein, [Joy] caused the death of Michaela Watkins by wantonly engaging in a course of conduct by beating or scalding her, orfailing to seek medical treatment or aid for the resulting injuries, which created a grave risk of death to Michaela Watkins and thereby caused the death of Michaela Watkins under circumstances manifesting an extreme indifference to human life . (Emphasis added) . The above instruction, known as a combination instruction, presented multiple theories of the crime in a single instruction . As such, Joy contends that the verdict did not specify under which of the three theories they were found guilty, and thus, argue that this instruction offended

i l "A person is guilty of murder when . . . he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person ." KRS 507.020(1)(b) . See also KRS 507 .020 Commentary (1974) ("Subsection (1)(b) following the lead of the Model Penal Code and other modern statutes, manifests a judgment that there is a type of homicide that should be treated as murder even though the actor had no conscious desire to cause the victim's death.") . 21

their right to a unanimous verdict because there was insufficient evidence to support all three alternative methods of committing wanton murder. Before turning to the merits of the argument, we pause briefly to note that Joy failed to preserve this alleged error and essentially concedes such in her brief. The error assigned to an erroneous jury instruction is unpreserved "unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection ." RCr 9 .54(2) . Joy concedes that "no specific objection was made to the nonunanimous verdict," and does not argue, or provide any citation to the record, that she offered an instruction or made a motion relating to this jury instruction .

Thus, we review this assignment of error to jury instruction for

palpable error . RCr 10 .26. This Court has long held that "a verdict can not be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense ." Wells v. Commonwealth, 561 S.W .2d 85, 88 (Ky. 1978) . Thus, a single jury instruction may combine multiple theories "so long as there is sufficient evidence of each [theory] ." Travis v. Commonwealth, 327 S .W.3d 456, 459-460 (Ky. 2010) .

We now examine the sufficiency of the evidence supporting each of the three theories contained in the wanton murder jury instruction sub judice. a. "Beating" The evidence supported the theory that Joy may have committed wanton murder by causing Michaela's fatal chest injury or contributing to her death by beating her . Dr. Rolf testified that Michaela's chest injury was caused by a blunt, firm, and crushing force as Michaela's back remained supported against a hard surface. She also testified that the various blunt impact injuries to Michaela's head, trunk, and extremities could have contributed to her death. In Joy's final police interview, she admitted that, on the morning of the day Michaela died, she and Michaela "got into a tussle" on the floor during which Joy placed her entire body weight upon Michaela to in order to restrain her as Joy punched her head. Joy admitted that she inflicted the bruising and stated that it was not Patrick's fault . b. "Scalding" The evidence supported the theory that Joy may have committed wanton murder by burning Michaela . 12 As stated above, Dr. Rolfs testified that her examination revealed burns covering a "large amount of the [victim's] body surface area;" and furthermore ; Dr. Rolf stated that "with the removal of the skin, a person someone can become infected and die easily-very quickly."

12

A s stated above, Dr. Rolf testified that "with the removal of the skin a person can become infected and die easily-very quickly-if it's not treated." 23

Joy admitted ordering Michaela to bathe and being present upstairs with her at times during her bath . Taken with the fact that substantial forensic evidence showed that Michaela's burns were not self-inflicted but were the product of being held in three to four inches of nearly boiling hot water, the evidence was sufficient to give rise to a reasonable inference that Joy was not being entirely truthful and may have burned Michaela . c. "Failing to Seek Medical Treatment or Aid" The evidence supported the theory that Joy may have committed wanton murder by failing to seek medical treatment or aid for injuries she inflicted. A review of Appellants' police statements reveals that Joy explicitly admitted that she had individually failed to take Michaela to a doctor or hospital, knowing that she was seriously ill or injured . Dr. Rolf concluded that all of Michaela's injuries could have been treated had she been given proper medical support. Therefore, we hold that there was sufficient evidence to support this theory of wanton murder. In an incomplete sub-argument, Joy claims that the trial court erred in failing to instruct the jury on whether she had a duty to seek medical treatment . She contends that legal duty is an element in failing to provide medical care, and attempts to draw a parallel to a deadly weapon jury instruction . 13 According to Joy, it is error for a court not to instruct the jury that it must first find a gun operable before concluding that it was a deadly

13

Thacker v. Commonwealth, 194 S.W.3d 287 (Ky. 2006) . This is the only case Joy

cites in support of her argument.

24

weapon, just as it was error for the court here to fail to instruct on her duty to provide medical care . We disagree and find Joy's analogy inapt: This section of the jury instruction presented a theory of her wanton conduct-causing Michaela's death by failing to treat her resulting injuries (injuries Joy inflicted) . As such, duty to treat is not an element of the offense; failure to treat was merely a theory of how Joy's conduct in causing Michaela's death rose to the level of wanton murder. Consequently, our inquiry, as detailed above, is whether there was sufficient evidence of this theory to support the jury's verdict, an inquiry we previously answered in the affirmative . D. Change of Venue Joy argues that the trial court erred by denying a change of venue due to pretrial publicity . It appears that Joy never filed a motion seeking change of venue, but rather "she agreed with Patrick Watkins' motion for a change of venue and adopted his assertions ." Regardless of the dubious preservation, we find no error. On April 14, 2008, Patrick filed a motion for a change of venue on grounds that a fair trial could not be had in Clark County due to prejudicial media attention and, in the alternative, requested individual voir dire on the effect of publicity . In support of the motion, he highlighted numerous newspaper articles documenting Michaela's death and the subsequent investigation . For example, on March 13, 2007, the Lexington Herald-Leader published a front page article, entitled "Neighbors Describe Dead Girl's Chronic

Abuse." The article claimed that Michaela was an unhappy child and that several neighbors and relatives stated that Appellants routinely belittled and cursed the child, including a statement by Joy's grandmother that she had once witnessed Patrick smash Michaela's fingers on a table . On March 15, 2007, the Winchester Sun carried a front page photograph of Michaela and a makeshift memorial, stating that Appellants had been charged with murder and that they had given inconsistent statements . In all, at least forty stories appeared in the local media. 14 On April 25, 2008, Patrick filed a supplemental motion for a change of venue . Therein, he described a memorial service that was held on the courthouse lawn on April 17th for child abuse victims . Several Clark County residents attended and, during the service, decorative angels representing abused children were placed on the lawn and left there for a number of days . Two children were selected from the victims to represent the group, one of which was Michaela. People who knew the two children spoke at the service and balloons of Michaela's favorite color were flown at the scene to commemorate her. WKYT of Lexington reported on the service and, on the 14

The motion also made much of the fact that the Grand Jury had attached a statement to its report acknowledging the crime's disturbing nature, which, in its entirety, read : The most profound cases involved crimes of violence and neglect, particularly when the victims are young and helpless . We are appalled that some members of our community were capable [sic] causing such great harm . Notwithstanding the horror of the case where a young girl lost her life we were impressed by the response of law enforcement. Winchester Police Detective James Hall has earned our collective respect and appreciation for the way he conducted the investigation into the death of Michaela Watkins . 26

following day, the Winchester Sun headlined the story, carrying Michaela's picture and describing her cause of death. On May 1, 2008, the trial court held one of two hearings on the motion. Though the trial court concluded that the facts of the case would likely lead any person to naturally conclude that it was a heinous offense, the court was troubled by recent events and stated: When I came here to court this morning, the first thing I did at 7:30 and [sic] go out front and . . . there were all the angels of the child victims . . . . And I certainly don't criticize in any fashion any memorial service for the victims, particularly child victims of crime . I think it is entirely proper as all of us know April was child abuse prevention month throughout the Commonwealth of Kentucky . These types of memorial services are held probably in most every county. I think it was extremely unfortunate that this service took place on the front steps of the courthouse less than three weeks from the day this trial was to occur. . . . I think it would be virtually impossible to expect that you can get a jury of people that were not affected by that, particularly when they walk through the front door of the courthouse and look on both sides of the main entrance at the ribbons and the individual angels that are there and have been there two weeks today. As a result, the trial court granted a continuance and stated that it would consider a change of venue. The court subsequently denied the motion for change of venue and expressed its desire to try to seat an impartial jury . The court reserved ruling on the possibility for individual voir dire, as it intended to conduct extensive questioning regarding pretrial publicity . The trial began on September 2, 2008 . The court opened by stating to the jury pool that many had probably heard about the case but those who had

formed feelings or opinions would likely be unable to hear the case . At the court's request, several jurors approached the bench who felt they could not fairly hear the evidence where they were questioned by the trial court and counsel . 15 As a result, out of the eighty-four potential jurors called, the trial court was forced to excuse fifteen (18%) for cause . "In Kentucky, the right to an impartial jury is protected by Section 11 of the Kentucky Constitution, as well as the Sixth and Fourteenth Amendments to the [United States] Constitution ." Fugett v. Commonwealth, 250 S .W.3d 604, 612 (Ky. 2008) ; see also Irvin v. Dowd, 366 U.S . 717, 722 (1961) ("In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors . The failure to accord an accused a fair hearing violates even the minimal standards of due process.") (citations omitted) . Though "[i]t is not required . . . that the jurors be totally ignorant of the facts and issues involved" to be impartial, Irvin, 366 U .S . at 722, a juror must have a "mental attitude of appropriate indifference" - a state of mind for which there is no precise test or formula . Id. at 724-25 . A corollary to the right to an impartial jury is that a change of venue may be constitutionally required where the jurors' "minds [are] ineradicably poisoned" by prejudicial publicity . Jacobs v. Commonwealth, 870 S .W.2d 412, 416 (Ky. 1994) ; see Wilson v. Commonwealth, 836 S .W .2d 872, 888 (Ky. 1992) is Appellants did not object to the trial court's questioning nor did they renew their request for individual voir dire. We, therefore, only address the issue of venue . See Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971) ("[I]f an objection is made, the party making the objection must insist that the trial court rule on the objection, or else it is waived."). 28

("[A] change of venue should be granted if it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending .") (citing Brewster v. Commonwealth, 568 S.W .2d 232 (Ky. 1978)) ; McCleskey v. Kemp, 481 U .S . 279, 310 n.30 (1987) ("Widespread bias in the community can make a

change of venue constitutionally required.") (citing Irvin, 366 U .S . at 717) . 16 In order to justify a change of venue on these grounds, a defendant must show that "there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced" him, though it is not enough "that jurors may have heard, talked, or read about a case ." Brewster, 568 S .W.2d at 235; see also Wilson, 836 S.W.2d at 888 ("In order for a change

of venue to be granted there must be a showing that: 1) There has been prejudicial news coverage, 2) It occurred prior to trial, and 3) The effect of such news coverage is reasonably likely to prevent a fair trial."). 17 However, we note that "a showing of actual prejudice is unnecessary if the procedure involves such a probability that prejudice will result that it is deemed inherently lacking in due process" - i.e., where the prejudice is implied or presumed from the totality of the circumstances . Brewster, 568 S .W.2d at 235 (citing Estes v. Texas, 381 U.S . 532 (1965)) . Though we have not always

We note that less drastic approaches may suffice to remedy the risk of prejudicial publicity . See Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) ("One way to try to meet the problem is to grant a continuance of the trial in the hope that in the course of time the fires of prejudice will cool . . . . Another way is to provide a method ofjury qualification that will promote, through the exercise of challenges to the venire - preemptory and for cause - the exclusion of prospective jurors infected with the prejudice of the community from which they come .") . 1 7 The often quoted three-part test from Wilson appears simply an elemental summary of our previous holding in Brewster.

16

29

carefully reiterated the distinction, "there is clearly established Supreme Court [of the United States] precedent distinguishing between cases involving presumed prejudice - when the setting of the trial [is] inherently prejudicial, and actual prejudice - when review of both the jury voir dire testimony and the extent and nature of the media coverage indicates a fair trial [was] impossible ." Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir. 2006) (internal quotation marks omitted) (quoting Nevers v. Killinger, 169 F.3d 352, 364 (6th Cir. 1999)) (abrogated on other grounds by Harris v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 2000)) ; see Murphy v. Florida, 421 U.S . 794, 788-89 (1975) (contrasting Irvin, a case of actual prejudice, to Rideau v. Louisiana, 373 U.S. 723 (1963), Estes, and Sheppard v. Maxwell, 384 U.S . 333 (1966), where prejudice was presumed) ; see also Nevers, 169 F.3d at 362-64 (same) ; see generally Skilling v. United States, 130 S .Ct. 2896 (2010) . A change of venue determination is especially appropriate for the trial court's discretion . See Stopher v. Commonwealth, 57 S.W.3d 787, 795 (Ky. 2001) ("It is readily acknowledged . . . that wide discretion is, and should be, vested in the trial court when determining a change of venue question.") (citing Jacobs, 870 S .W.2d at 412) . We have explained that "[g]reat weight is given to the trial court's decision because the judge is present in the county and is presumed to know the situation ." Id. (citing Nickell v. Commonwealth, 371 S.W.2d 849 (Ky. 1963)) ; accord Mu'Min v. Virginia, 500 U .S. 415, 427 (1991) ("Particularly with respect to pretrial publicity, we think this primary reliance

on the judgment of the trial court makes good sense . The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror.") . Turning to the merits of Joy's allegations, after examining the totality of the circumstances, we do not believe that the trial setting was inherently prejudicial . See Nevers, 169 F .3d at 362 ("One type of prejudice is . . . [where] the `circumstances under which the trials . . . were held' were such that inherent prejudice to the venire should be presumed .") (quoting Murphy, 41 U.S . at 798-99) . While we agree that the facts of the case were, indeed, heinous and even disturbing, the ensuing publicity was neither so prolific or prejudicial in nature so as to give rise to a presumption of prejudice. Cf. Rideau, 373 U .S . at 724 (defendant's confession televised and seen by as many as 97,000 people in a community of 150,000, rendering "[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle . . . a hollow formality") ; Sheppard, 384 U.S. at 353-58 (sensational and inflammatory reporting prior to and during a trial where "the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein") ; Murphy, 421 U.S. at 799 (describing the Estes trial as one "conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment") . While it is true that at least one media account, if not more,

identified prior acts of mistreatment or abuse, this fact, taken alone, does not give rise to an inference of prejudice per se. See Murphy, 421 U .S. at 799 (rejecting the idea that "juror exposure to information about a state defendant's prior convictions . . . alone presumptively deprives the defendant of due process") . And while the April 17th memorial service has given this Court pause, we conclude that the trial court, in its sound discretion, rightly dismissed it. There is no indication that the service itself was intended to be, or was, anything more than a legitimate commemoration of Michaela and other child abuse victims brought about not by an acute disgust toward Appellants, but by the month of April, representing child abuse prevention month. Cf. Jacobs, 870 S.W.2d at 415 ("The force of adverse publicity gave impetus to the excitement and fostered prejudice among the people of the community . In fact, one of the public fund raising events to aid in Jacobs' prosecution raised $2,9221 . To be sure, there is also no indication that any remnants of the memorial persisted on the courthouse lawn beyond the month of May, let alone into the time of the September trial. Moreover, Joy has not demonstrated a reasonable likelihood that the pretrial publicity actually prejudiced the venire . See Nevers, 169 F.3d at 363 ("The other type of prejudice . . . stands for the proposition that absent the `televised confession amounting to a trial' or `carnival atmosphere' situations, pretrial publicity that would inherently prejudice the jury pool can be discerned only by reviewing both the extent and nature of the publicity and the responses

of the prospective jurors in ;voir dire .") . Setting aside what we believe was, given the tragic nature of the case, an unsurprising amount of unremarkable publicity, we find it significant that only fifteen (18%) of the eighty-four potential jurors had to be excused for cause due to bias or preconceptions of Appellants' guilt . This is a figure that falls far short of that usually incident to a finding of prejudice . In reversing the defendant's conviction in Jacobs, this Court found "ominous" that 74% (112 of 153) of the jury pool had to be excused for cause due to "fixed opinions of guilt ." 870 S .W .2d at 415-16 . Similarly, in Irvin, the trial court was forced to excuse for cause 62% (268 of 430) of the panel. 366 U .S . at 727 . Though not dispositive, it is noteworthy that this Court has affirmed convictions with a significantly higher rate of excusal than that presented here. See, e.g., Stopher, 57 S.W.3d at 796 (40% excused for cause) . Finally, we note that Joy does not make any contention that the trial court erred in failing to excuse for cause biased jurors, 18 or that any such jurors remained on the panel that decided their case . Cf. Jacobs, 870 S .W.2d at 415 ("Of 38 jurors who were accepted by the court, 19 had an initial 18 Joy does not argue that the trial court abused its discretion in failing to excuse for cause certain jurors . See generally Shane v. Commonwealth, 243 S .W.3d 336 (Ky. 2007) . While it is true, as Joy suggests, that a prospective juror (#69) had formed an opinion in the case, a review of the strike sheets reveals that the juror was apparently excused prior to defense counsel's voir dire . We have also reviewed Joy's related allegation that, when asked by defense counsel, only one juror in the panel indicated they could presume Joy's innocence, and believe it similarly without merit. Defense counsel asked the panel to "please raise your hands if you think Joy Watkins is not guilty" and, after only one juror raised his or her hand, defense counsel moved to strike the entire panel on grounds that they could not presume innocence. After a bench conference, the motion was rightly overruled due to the fact that the question was inaccurately phrased. When defense counsel subsequently rephrased the question, there was no indication that the jurors could not presume Joy's innocent . 33

opinion that Jacobs was guilty . Of those 19 jurors, four sat on the panel that decided the case.") ; Irvin, 366 U .S. at 727 ("Here the `pattern of deep and bitter prejudice' shown to be present throughout the community . . . was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty .") (citation omitted) . E. "Irrelevant" Evidence 1 . Credit Card Reference Joy next argues that the Commonwealth's reference at trial to obtaining a credit card in the name of Michaela was irrelevant and represented impermissible character evidence under KRE 404(b) . While cross-examining Ashley Clem, the social worker that performed the out-of-county home evaluation on the Watkinses, the Commonwealth attempted to question her regarding a credit card bill issued to Appellants in the name of Michaela. Before the Commonwealth could proceed, defense counsel objected and argued that Clem lacked personal knowledge of the matter, that the bill could not be authenticated, and that it represented hearsay. The trial court sustained the objection and prohibited introduction of the credit card bill but permitted the Commonwealth to ask Clem whether she would have approved a child's placement had the prospective parents applied for a credit card in the child's name. The Commonwealth proceeded, where Clem responded that she would not have approved such a placement.

Joy made no other objection and requested no further relief; and consequently, failed to preserve error . As this Court has often repeated; an appellant is "not . . . permitted to feed one can of worms to the trial judge and another to the appellate court." Neal v. Commonwealth, 95 S.W.3d 843, 848 (Ky. 2003) (citing Kennedy v. Commonwealth, 544 S.W .2d 219 (Ky. 1976)) ; see also Craig v. Dean, 741 S.W .2d 655, 657 (Ky. 1987) ("If a party chooses to state grounds in the absence of a request from the court, he is bound thereby .") . On this issue, Joy does not request palpable error review, thus we do not address it further . Shepherd v. Commonwealth, 251 S.W .3d 309, 316 (Ky . 2008) ("Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10 .26 unless such a request is made and briefed by the appellant.") (citations omitted) . 2. Admission of Table Leg Finally, Joy alleges that it was palpable error to admit into evidence a wooden table leg found in Appellants' car because the forensic evidence was unable to establish whether it was actually used to inflict Michaela's chest injury. She points out that: no usable prints or fibers were found on the table leg indicating that it was used to strike Michaela; the bruise pattern on Michaela's chest appeared larger than the table leg's actual diameter; and, the medical examiner was unsure what instrument, if any, caused the injury. She argues that she was prejudiced by its admission because the Commonwealth

asserted that the table leg was the likely murder weapon . Having reviewed Joy's argument, we find no palpable error. According to Dr. Hamon, the table leg found in Appellants' car could have been used to inflict Michaela's chest injury, even though Dr. Rolf testified that a number of different objects could have caused it. This is sufficient . E. Patrick's Allegations of Error Likely to Recur on Retrial We briefly address several of Patrick's allegations to the extent that they are likely to recur on retrial . First, we must again remind the trial court that combination jury instructions are only appropriate when there is evidence to support each distinct theory of culpability . See Benjamin v. Commonwealth, 266 S .W.3d 775, 785 (Ky. 2008) (stating that "if the trial judge finds that the evidence is unlikely to support a combination instruction, the court should include separate verdict forms, and if the evidence suffices, the court may use a combination instruction which permits the jury to distinguish upon which theory it bases its findings .") . Next, to the extent that the Commonwealth seeks to utilize the reports prepared by the dentist, neuropathologist, and/or the toxicologist, pursuant to Melendez-Diaz, Patrick's constitutional rights permit him to cross-examine the authors of the accusatory reports . That Dr. Rolf was present when these reports were prepared does not make this any less violative of the Sixth Amendment . Finally, the credit card evidence does not appear relevant to a murder prosecution, and likely runs afoul of the rules prohibiting character evidence . KRE 404 .

III. CONCLUSION Therefore, for the above stated reasons, we hereby affirm Joy Watkins' conviction, but we reverse Patrick Watkins' conviction and remand to the trial court for proceedings consistent with this opinion. All sitting. Minton, C.J . ; Abramson, Cunningham, Schroder, Scott, and Venters, JJ ., concur. Noble, J ., concurs in result only.

COUNSEL FOR APPELLANT, JOY RENEE WATKINS : Kathleen Kallaher Schmidt Appeals Branch Manager Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601-1109 COUNSEL FOR APPELLANT, PATRICK ALLEN WATKINS : Roy Alyette Durham, II Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General of Kentuc Perry Thomas Ryan Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, KY 40601-8204

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION .

RENDERED : APRIL 21, 2011 NOT TO BE PUBLISHED

,*UyrrMr Courf of `rnfurkV '1~ 2009-SC-000498-MR JAMES LEMASTER

V

APPELLANT

ON APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE NO . 08-CR-00038

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT REVERSING AND REMANDING We are again confronted with another trial court's aversion to striking a biased juror for cause . Thus, today we pen another chapter in the same book, once again reiterating that a trial court's failure to strike a biased juror "violates a substantial right accorded great weight in our legal history." Shane v. Commonwealth, 243 S .W.3d 336, 343 (Ky. 2007) . This substantial right announced in Shane, the landmark pronouncement on this matter, affords no leeway for judicial speculation as to a juror's fairness and impartiality . Appellant, James Lemaster, was convicted in Lawrence Circuit Court of rape, sodomy, kidnapping, unlawful imprisonment, and two counts of wanton endangerment, receiving a cumulative sentence of 70 years in prison. He appeals that verdict, alleging error in evidentiary decisions, jury selection, and

the denial of a directed verdict on the sodomy charge. Due to the trial court's refusal to strike a biased juror for cause, we reverse . I. Background In the late evening of July 16, 2002, and while defying a restraining order against him, Appellant confronted his ex-girlfriend, Rita Pigg, and her daughter, Regina, the alleged victims

in

this case, at the trailer where they lived

in Lawrence County . According to Appellant, this encounter was an attempt to reconcile with Rita . The trio got in Rita's car and drove to a nearby strip mine, where the remaining events underlying this prosecution ultimately took place. The key factual dispute at trial, however, was whether these events, including Rita and Regina accompanying Appellant in the car, occurred voluntarily or by force . Both Rita and Regina testified for the Commonwealth . According to their testimony, Appellant forced them into Rita's car by holding a gun to Regina's head . Appellant then drove them thirteen miles to a deserted strip mine, threatening to kill Rita if either moved . Once out of the car, Appellant resumed pointing his gun at Regina and instructed them to walk up the hill . Somewhere up the hill, Regina sat down on a log while Rita and Appellant walked off. There, Appellant ordered Rita to perform oral sex on him. After her initial refusal, Appellant put a gun to her head, after which she succumbed to his demand. Appellant directed Rita to remove her clothing and then he raped her . The pair returned to check on Regina and then went back uphill where Appellant raped Rita again. Ultimately, Appellant agreed to let Rita and Regina

go under the condition that they would not discuss what had occurred and upon the condition that Rita would marry him . He then gave Rita five dollars for gas and the she and Regina drove away . Once free, they quickly found a gas station where Rita called the police . Appellant's version of events was largely similar, except he unequivocally denied any force or threats . He claimed that Rita and Regina voluntarily accompanied him on the drive to the strip mine and then in a walk up the hill. According to him, Regina decided to sit down away from them so Appellant and Rita could have time alone. He then asked Rita if, notwithstanding their breakup and the subsequent restraining order, they could still have sex. According to Appellant, Rita replied that they could and she wanted to . Consequently, according to Appellant, they engaged in consensual sex. They then agreed to meet again, near Rita and Regina's home around 5 :00 a.m. Rather than ride back with Rita and Regina, however, Appellant decided to walk thirteen miles home. Later changing his mind, he obtained a ride home from an unidentified driver . There is no dispute that, after this incident, Appellant immediately went on the run for six years . He claimed that his reason for doing so was unrelated to any allegations of rape, sodomy, kidnapping, wrongful imprisonment, or wanton endangerment, none of which he was concerned about. Instead, he claims that his attempt to escape was based on his violation of the restraining order, for which he feared he would be shot on- sight if identified by police . However, he admitted at trial that soon after the incident, he saw news stories

about how he was wanted by police for serious felonies other than violating the restraining order . In 2008, Appellant was caught and charged with two counts of kidnapping, two counts of rape, one count of sodomy, and two counts of wanton endangerment . He was convicted of one count of kidnapping, for which he received twenty years ; one count of unlawful imprisonment, for which he received four years; one count of rape, receiving twenty years; one count of sodomy, receiving twenty years ; and two counts of wanton endangerment, four years for one, two years for the other. All of his sentences were to be served consecutively for a combined sentence of 70 years. He now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) . II. Analysis He raises four issues on appeal. The first issue pertains to the court's refusal to strike two jurors for cause, who he claims exhibited pro-prosecution bias . Secondly, he contends that the trial court committed reversible error in admitting victim impact testimony from both victims during the guilt phase of the trial . Thirdly, he contends that he was wrongly barred from introducing a prior statement from Rita that her daughter was a liar. And finally, he claims that he was entitled to a directed verdict on the sodomy charge, although he admits this argument might be based on a misunderstanding of the testimony presented at trial .

A. Refusal to Strike a Juror For Cause Appellant argues that the trial court erred when it failed to strike two jurors, forcing him to use his peremptory challenges to remove them.' Specifically, he alleges that Juror W.R . should have been stricken for cause after she expressed an inability to find Appellant not guilty unless he presented evidence demonstrating his innocence . Appellant preserved this error by moving to excuse the jurors and by exhausting all of his peremptory challenges .2 The Commonwealth does not respond to the merits of Appellant's argument, claiming instead that Appellant waived this argument since his trial counsel failed to secure a ruling on the motion to strike . However, in his reply brief, Appellant correctly contends that the trial court, through its own "informal, abbreviated manner," implicitly denied the motion to strike when it directed W.R. to return to the venire pool following examination by the court and counsel at the bench conference . Having extensively reviewed the exchange with the juror, we agree that W.R. should have been stricken when she repeatedly demonstrated her inability to afford Appellant his protections ' Finding error and reversing based on the first juror, we do not address Appellant's arguments as to the second juror's impartiality. It is sufficient that we reverse for the first. 2 Appellant concedes that he did not set forth the names of other jurors he would have stricken as is now required . See Gabbard v. Commonwealth, 297 S.W.3d 844, 853 (Ky. 2009) (outlining error preservation in this area) . However, we did not decide Gabbard until October 2009---four months after Appellant's June 2009 trial. Thus, as we stated in Paully, "[i]t would be unfair for us to hold [Appellant] to a standard that did not exist at the time of [his] trial[] ." Paulley v. Commonwealth, 323 S .W.3d 715, 720 (Ky. 2010) Appellant preserved this error via his timely motion to strike for cause.

under the Fifth Amendment to U .S . Constitution and X11 of the Kentuc Constitution . Consequently, we reverse. During voir dire, defense counsel requested a bench conference, during which he moved to strike four jurors. The court then called each juror forward for individual questioning by both parties before determining whether a strike for cause was appropriate . At the bench conference involving W.R., the following exchange occurred: Prosecutor: You understand that the defendant is innocent until proven guilty? W . R. : Right, I understand that . Prosecutor: That the burden is upon me to prove the case . W.R. : Right. Prosecutor: Do you feel that if I put up, and I have not proven my case, that the defendant has to do anything or put up any evidence, not necessarily object, or be here-W. R. : Right. Prosecutor: -but actually, if I don't prove my case does he have to put on anything at all? W.R. : I just feel like I need to hear something . I mean, you know, if he's, to me if he's going to sit over there and there's not going to be anything said in his defense, I'll have that doubt. You know what We recognize that W.R.'s responses are also susceptible to the interpretation that she could not provide Appellant the presumption of innocence . This failure is no less egregious, since the Supreme Court of the United States has long held that the "presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S . 432, 453 (1895) . Thus, the result would be the same, as a failure to provide the presumption of innocence would violate a litany of protections and mandate reversal . See U.S . Const. amend. XI; § 11 of the Kentucky Constitution ; RCr 9 .36(l) . 3

I'm saying . That's what. You know, I know they're innocent until proven guilty but I have to hear something, you know, in his defense. Prosecutor: What if [Defense Counsel], after hearing my case, feels that I have not proven my case and he decides to rest on the fact that I have failed to do my job? W.R. : Well, I don't know. I just, to me, I just, that doubt would be there. I mean, you know what I'm saying? I don't want to decide, you know, make a decision .that, I don't want to say he's guilty . I want to think he's innocent. But if I'm not you know, if there's not proof, I've got to hear something. You know what I'm saying? Trial Judge : Let's say the Commonwealth presents their case and they do the world's sorriest job that ever was, and you wouldn't believe two words of what their witnesses say. Now let's say they close their case and he [Defense Counsel] says they haven't proved nothing. What would you do then?. W .R. : Now, repeat that to me . Trial Judge : Okay, let's say the Commonwealth puts the sorriest case in the world on, you wouldn't believe the witnesses underW . R. : Right. Trial Judge: -on ten bibles. W.R . : Right. Trial Judge: And they close their case . And he says they haven't proved anything. What would you do then? W.R . : I'd probably have to agree with him [gesturing towards defense counsel], you know, that he's not, you know, but IjustProsecutor: If I may reverse that, it's my duty to convince you, not his [gesturing towards defense counsel] W .R. : Right, okay. Prosecutor: Do you understand that? W .R. : Right, okay .

Prosecutor: I have to put on the evidence, not him [gesturing towards defense counsel] . W.R . : Right, okay. Prosecutor: So if I fail to put on that evidence, how do you feel about what he [gesturing towards defense counsel] has to do? W .R. : Well, I feel okay with what he, you know, if you fail to convince me I'd be alright with what he [gesturing towards defense counsel] decides to do . Prosecutor : Even if he [defense counsel] just doesn't do nothing . W.R. : Right. Prosecutor: Even if he just sits down and says "I quit ." W .R. : Right, you know, I'd agree with [gesturing towards defense counsel], you know . Prosecutor: He, okay. . . W.R. : You know. . . Trial Judge : Okay. W .R. : I just, you know, I just think. That's what my problem, I just think if he is innocent he would want to defend himself. You know what I'm saying? I don't want to-4 (Emphasis Added) . At the conclusion of this exchange, the court inferentially denied5 Appellant's motion to strike, when it directed W.R. to "go back over there," pointing to the jury box. 4 This was W.R.'s last comment of substance . 5The difference between the trial court's manner of sustaining and denying these strikes is understood when comparing the court's actions following the first and second juror. After examining the first juror challenged, the court said "bye" and waived the juror out . The video record then shows that juror turning around and walking out of the courtroom .

Initially, we acknowledge that trial courts possess "broad discretion to determine whether a prospective juror should be excused for cause ;" and, as such we review these decisions for abuse of discretion . Mabe v. Commonwealth, 884 S .W.2d 668, 670 (Ky. 1994) ; Gabbard v. Commonwealth, 297 S.W .3d 844, 853 (Ky. 2009) . However, "[w]hen there is reasonable ground to believe that . . . [a] juror cannot render a fair and impartial verdict on the evidence," that juror shall be stricken for cause. RCr 9 .36(1) . As we have previously stated, impartiality is a state of mind ; and thus we directed trial courts to "weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor ." Shane v. Commonwealth, 243 S .W.3d 336, 338 (Ky. 2007). Furthermore, once a juror has shown an inability to be fair and impartial, "no magic question" can rehabilitate him. Id. Thus, the failure to "remov[e] a biased juror from the venire, and thereby forc[e] a defendant to forfeit a peremptory strike, makes the defendant take on the duty of the court and prevents him from getting the jury he had a right to choose. This violates a substantial right accorded great weight in our legal history, and can never be harmless error." Id. at 343 . See also RCr 9 .24 (otherwise under our harmless error standard we "must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties .") (Emphasis added) . Recently, we cautioned that it is "reversible error for a trial court to refuse to excuse for cause a juror who would be prejudiced against the defendant because he did not testify in his own behalf." Hayes v. Commonwealth, 175 S.W.3d 574, 584 (Ky. 2005) . We further stated that "[a]

criminal defendant is entitled to a trial by jurors who will not be prejudiced by the fact that the defendant exercised the Fifth Amendment privilege not to testify ."6 Id. at 585 . Additionally, we cited, with approval, a case strikingly similar to the present dispute, wherein the Court of Appeals found it reversible error for the trial court to deny a strike for cause after a juror stated he could find the defendant not guilty if he failed to testify and the Commonwealth failed

to prove its case, "but it would be tough."' Id. at 584 (citing Humble v. Commonwealth, 887 S .W .2d 567, 569-71 (Ky. App . 1994) (emphasis added) . When applying our precedent to the present case, the exchange at the bench between the Commonwealth, the court, and W.R., is a quintessential example of a juror "who would be prejudiced against the defendant because he did not testify in his own behalf." Hayes, 175 S .W.3d at 584 . W.R. admitted, multiple times, her inability to impartially decide the case in the absence of Appellant's testimony. She repeatedly asserted that she "needed to hear something . . . if he's going to sit over there and there's not going to be 6See Hayes, 175 S.W.3d 584-85 (collecting cases : "State v. Cross, 658 So.2d 683, 687-88 (La. 1995) (juror who stated he would not afford defendant the presumption of innocence if he did not take the stand) ; State v. Scott, 482 S .W .2d 727, 732-33 (Mo .1972) (en banc) (juror who said if defendant did not avail himself of his opportunity to testify he would consider that fact and hold it against him) ; People v. Bludson, 97 N.Y .2d 644, 736 N .Y.S .2d 289, 761 N .E .2d 1016, 1018 (2001) (juror who stated that defendant's failure to testify might influence his decision and "make it a little hard for [him] to say that [defendant was] not guilty"); State v. Hightower, 331 N .C. 636, 417 S.E .2d 237, 240 (1992) (juror'who said on one occasion that he could follow the law as given to him by the court but then said that the defendant's failure to testify would "stick in the back of my mind" while he was deliberating) . The Supreme Court of Hawaii has held in two cases that post-trial evidence that a juror knowingly concealed during voir dire a bias against defendants who failed to testify or present evidence of their innocence is grounds for a new trial. State v. Furutani, 76 Hawaii 172, 873 P.2d 51, 63-64 (1994) ; State v. Sugiyama, 71 Haw. 389, 791 P.2d 1266, 1267 (1990)") .

anything said in his defense, I'll have that doubt ." Even after walking W .R. through these hypotheticals--situations involving the Commonwealth's total failure to prove its case-- W .R. still failed to grasp the Fifth Amendment dictates, and maintained that "if [Appellant] was innocent he would want to defend himself." And as we stated in Paulley, we find particularity troubling that W.R.'s "last word on this crucial subject was [her] honest-seeming expression of doubt about her ability to be fair and impartial." 323 S .W.3d at 721 (reversing due to the trial court's failure to strike impartial juror for cause) . Consequently, the trial court erred when it denied Appellant's motion to strike W.R. for cause. As we stated in Hayes, "[t]he principle that a defendant's failure to testify in his own behalf cannot be held against him is perhaps the most critical guarantee under our criminal process, and it is vital to the selection of a fair and impartial jury that a juror understand this concept." Hayes, 175 S .W.3d at 585 (quoting People v. Boswell, 476 N.E .2d 1154, 1157 (1985), rev'd on other grounds, 488 N .E.2d 273 (1986)) . Here, at least, one could not say, absent speculation, that W.R. understood or accepted this concept ; and thus, we must reverse Appellant's conviction . B. Other Claims of Error Though reversing Appellant's conviction, this Court must also briefly consider his other claims of error, two of which we consider because they are likely to recur at retrial (victim impact statements during the guilt phase and his contention that the prior statement by Rita describing Regina as a liar was wrongfully excluded) and the other because it could affect whether he can be

retried on one of the charges (his claim that he was entitled to a directed verdict on the sodomy charge) . Both victims testified, over Appellant's objection, to the impact these crimes have had on their lives during the guilt phase . This should not recur on retrial . Victim impact testimony is generally inadmissible at the guilt phase of the trial due to its minimal probative value, in contrast with its inflammatory nature . Clark v. Commonwealth, 833 S.W .2d 793, 797 (Ky. 1991) ; Ice v. Commonwealth, 667 S .W.2d 671, 676 (Ky. 1984) .8 Next, to the extent it could recur on retrial, we address Appellant's contention that he was wrongly barred from introducing Rita's prior statement . The truthful character of a witness "may be attacked . . . by evidence in the form of opinion . . . ." KRE 608(a) . Thus, Appellant was free to, and did, elicit Rita's opinion on Regina's character for truthfulness . Appellant, however, asserts his right to introduce a written statement made seven years prior by Rita, where she described her daughter's problem with lying. This statement was hearsay and not admissible as a prior inconsistent statement . An extrinsic document exhibiting Rita's opinion seven years earlier about Regina's character at that time does not constitute Rita's present opinion 7 We disagree with Appellant's contention that the victims' impact testimony severely prejudiced him; however, since we are reversing, we must stop short of analyzing harmless error . 8 But see Hilbert v. Commonwealth, 162 S .W.3d 921, 926 (Ky. 2005) (finding no error when "[duuring the guilt phase of trial, the mothers of each victim briefly described their sons to the jury . The jury learned such information as the victims' dates of birth, the number and sex of their siblings, and the fact that one victim had a nineyear-old son . One mother softly cried and sniffled as she spoke. Each mother concluded by displaying a single photograph of her son for the jury .") 12

of Regina's character ; it constitutes Rita's previous opinion about Regina's previous character . Because the statement in the document occurred so long ago, it cannot reasonably be construed as being inconsistent with Rita's testimony in court. Such a prior opinion about a witness's prior character is inadmissible under the hearsay rule . Finally, turning to the sodomy conviction, Appellant contends that he was entitled to a directed verdict on this charge because of the absence of any evidence that Appellant actually sodomized Rita . Appellant's argument arises from confusion as to Rita's exact testimony . Appellant recalls Rita testifying only that Appellant "tried to stick" his penis in her mouth, 9 whereas the Commonwealth correctly quotes Rita as testifying that Appellant "tried and stuck it" in her mouth. In his reply brief, Appellant concedes that if he misheard Rita's testimony on this matter, which he did, then this argument has no merit. As such, this Court finds no error in the denial of a directed verdict on sodomy and, therefore, no constitutional bar against retrial on this charge . III. Conclusion For the aforementioned reasons, the judgment of the Lawrence Circuit Court is reversed, and we remand for proceedings consistent with this opinion . All sitting . Minton, C .J . ; Abramson, Noble, Schroder, Scott, and Venters, JJ ., concur . Cunningham, J ., dissents by separate opinion. 9 In the reply brief, Appellant actually discusses "Regina's testimony" on this matter. As there is no indication elsewhere in the record that Regina testified at all on this matter, this Court assumes that Appellant is referring to Rita's, not Regina's, testimony. 13

CUNNINGHAM, J ., DISSENTING : I respectfully dissent . The majority reverses this case primarily on the questions and answers given during the voir dire of Juror W.R. In Shane, this Court leveled the playing field by not forcing the defendant to give up a peremptory strike to get an ineligible juror off the panel. However, in doing so, we enhanced the consequences of a court failing to properly excuse a juror for cause. Therefore, we should more closely scrutinize juror questioning so as to be especially careful that we do not reverse serious criminal cases, such as this one, because of imperfect answers given by prospective jurors . In doing this evaluation post-Shane, I believe it behooves us as the reviewing Court to establish two levels of scrutiny concerning questions which are proposed to prospective veniremen during voir dire . Greater deference should be given to trial judges and jurors when the voir dire deals with questions of law. Much less leeway should be allowed in juror responses when the questions and answers go to questions of fact. The latter strikes right to the core of due process and the whole purpose of voir dire-to get fair and impartial jurors who can weigh the evidence, follow the law, and render a fair and impartial verdict . All too often, our voir dire in criminal cases places more emphasis on form rather than substance . This case is graphically illustrative of this point. When read carefully, the exchange between the lawyers, the court, and juror W.R. represents a far too typical expose ofjuror interrogation . With rare 14

exceptions, jurors are lay persons who are pulled out of their normal lives, thrust into a court room, and then interrogated in riddles . Who of us-had we not been trained in the legal gymnastics of trial practice--could have given any better answers than Juror W.R .?They deal solely in a question of law before the juror is even given any guidance or instruction by the court as to these principles . Juror W.R. is asked by the defense counsel if he has to prove something in order for the defendant to be found not guilty . This would follow the normal logic of things, except in our courts a defendant is not required to prove anything. Juror W.R. was never advised accordingly and had no way of knowing this was her duty . Yet, upon further questioning by the prosecutor and the judge, Juror W.R. finally says : Prosecutor: So if I fail to put on that evidence, how do you feel about what he (gesturing towards defense counsel) has to do? W.R. : Well, I feel okay with what he, you know, if you fail to convince me I'd be alright with what he (gesturing towards defense counsel) decides to do . Prosecutor : Even if he (defense counsel) just doesn't do nothing. W . R. : Right. Prosecutor: Even if he just sits down and says "I quit ." W.R. : Right, you know, I'd agree with (gesturing towards defense counsel), you know.

1S

Juror W .R. gets it. She gets it in her own lay person's words, even though no one assisted this poor lady in understanding that an instruction would be given for her to cast aside any pre-conceived notions she may have about a person facing prison needing to do something to defend himself. Contrary to the writing of the majority, we are not "confronted with another trial court's aversion to striking a biased juror for cause." This juror is not so much biased as she was unknowing . And an unknowing juror is not a bad thing. After reviewing the video of this exchange, I am fully confident that if Juror W .R. had been afforded the opportunity to serve, she would have been a very conscientious juror and would have scrupulously followed the judge's instructions. That second level of scrutiny-which should be extremely high-deals with what I call questions of fact. Such questions are whether a juror knows something about the case, his or her previous experiences, knowledge of the parties, and other such things which would strike at the heart of whether that juror could be fair and follow the dictates of the law . There is such an example in this very case of a prospective juror who was not even challenged for cause, ostensibly-I suppose-- because she gave all the "right" follow-up "right answers." This was a violent sex case of the defendant against a female victim-sodomy and kidnapping along with other offenses . One of the prospective jurors reported to the court that she had been raped when she was seventeen years old. While some judges may differ, that 16

would serve in my mind as an automatic exclusion . How one could, as the trial court asked of the juror, "cast that experience aside" is beyond my notion of reality . Yet she was not challenged for cause, although she did not serve on the jury. Had she been challenged for cause, I would have placed a much stricter treatment of that failure to strike than I would have in the case of Juror W. R. who was simply giving equivocal answers concerning the law. If we do not apply these two different levels of scrutiny to the evaluation of motions to strike jurors, we are doing our justice system a disservice . I would affirm the conviction ; therefore, I respectfully dissent . COUNSEL FOR APPELLANT : Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE: Jack Conway Attorney General Jeffrey Allan Cross Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601

MODIFIED: APRIL 21, 2011 RENDERED : NOVEMBER 18, 2010 TO B

,*uyrrmr Caurf of 'N 2008-SC-000618-DG

03AT APPELLANT

ROBERT HOLLON

V.

ON REVIEW FROM COURT OF APPEALS CASE NO . 2007-CA-001053-MR FRANKLIN CIRCUIT COURT NO. 94-CR-00086

APPELLEE

COMMONWEALTH OF KENTUCKY

OPINION OF THE COURT BY JUSTICE ABRAMSON REVERSING AND REMANDING In 1996, a Franklin Circuit Court jury found Robert Hollon guilty of the aggravated murder of Robbin White . In accord with the jury's recommendation, the trial court sentenced Hollon to life in prison without the possibility of parole for twenty-five years. Hollon appealed his conviction and sentence to this Court, and we affirmed in an unpublished Opinion . I Dissatisfied with the performance of both his trial and appellate attorneys Hollon, proceeding pro se in 2000, filed a Kentucky Rule of Criminal Procedure (RCr) 11 .42 motion in the trial court alleging, among other things, that appellate counsel had rendered ineffective assistance by failing adequately to Hollon v. . Commonwealth, 1996-SC-000382-MR (Ky . Dec . 17, 1998) .

demonstrate the trial court's error in admitting into evidence Hollon's confession . The motion was subsequently supplemented, both by Hollon and by appointed counsel, to add allegations that appellate counsel failed to raise a due-process challenge to the Commonwealth's use of the burglary aggravator, and failed to make references to the record supportive of Hollon's contention that no burglary had occurred . In April 2007, the Franklin Circuit Court denied Hollon's motion, finding in particular that Hollon's appellate counsel had performed adequately. Hollon appealed that determination to the Court of Appeals which, without reaching the merits of Hollon's ineffective assistance of appellate counsel claim, affirmed. Noting this Court's policy, first announced in Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992), refusing to recognize ineffective

assistance of appellate counsel (IAAC) claims in cases that have been decided upon

a

merits review, the Court of Appeals panel ruled that Hollon's IAAC

claim was properly dismissed because it was not cognizable by the trial court. The panel nevertheless joined other panels of our Court of Appeals2 and at least one panel of the United States Court of Appeals for the Sixth Circut3 in urging us to reconsider our Hicks policy as incompatible with, or at least as out of harmony with, United States Supreme Court precedent .

2

Lofton v. Commonwealth, No. 2002-CA-001550-MR, 2004 WL 178388 (Ky. App. Jan . 30, 2004) ; Payne v. Commonwealth, No. 2003-CA-000380, 2004 WL 691208 (Ky. App. April 2, 2004) . Boykin v. Webb, 541 F.3d 638 (6th Cir. 2008) .

We granted Hollon's motion for discretionary review to reexamine whether IAAC claims may be prosecuted in the Commonwealth and, if so, how such claims shall be pursued . Today we conclude that our courts should address such claims and that generally the proper avenue for asserting them will be the one Hollon chose: a motion pursuant to RCr 11 .42 to vacate or set aside the underlying judgment . ANALYSIS I . The Right to the Effective Assistance of Appellate Counsel Extends Beyond Counsel's Mere Filing of a Merits Brief. As Hollon correctly notes, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and through it the Sixth Amendment, entitle criminal defendants to the effective assistance of counsel not only at trial, but during a first appeal as of right. Evitts v. Lucey, 469 U.S . 387 (1985) . See generally Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996) . In Evitts, a case from Kentucky, Keith Lucey was convicted of trafficking in a controlled substance, and his retained attorney filed a timely notice of appeal to the Court of Appeals. The attorney failed, however, to file the thenmandatory statement of appeal, and consequently our Court of Appeals granted the Commonwealth's motion to dismiss the appeal . Through habeas review, the case found its way to the United States Supreme Court, and before that Court it was conceded that defense counsel's failure to file the mandatory form constituted ineffective assistance . The Supreme Court held that the Kentucky Court of Appeals' refusal to consider the merits of Lucey's appeal

solely on the ground of counsel's deficient performance denied Lucey the due process of law. A few years later, this Court was confronted with an IAAC claim somewhat different from the one the United States Supreme Court had addressed in Evitts . In Hicks v. Commonwealth, supra, following his direct appeal, the merits of which were considered and decided adversely to him, Glen Hicks moved for relief pursuant to RCr 11 .42, and alleged that appellate counsel was ineffective because he had failed to raise various issues for consideration on direct appeal . The trial court denied relief, and on appeal to this Court we acknowledged Evitts, but read it narrowly as requiring only the reinstatement of an appeal which had been dismissed as a result of counsel's ineffectiveness . Hicks's claim did not implicate that requirement . Moreover, this Court found a substantial difference in the situation of a convicted defendant for whom no appeal was even taken or one whose appeal was dismissed solely due to neglect of counsel and the situation of a defendant whose appeal was completely processed and the judgment affirmed. In the first case, there was never any consideration of the merits of any substantive issue by the appellate court. In the latter case, the appellate court has considered and decided the merits of the appeal . Hicks, 825 S .W.2d at 281 . The Hicks Court concluded that we would not "examine anew an appeal reviewed, considered and decided by this Court ." Id. Since then, we have refused to recognize the Hicks-type of IAAC claim and have upheld Hicks's narrow reading of Evitts several times. Upon further

consideration of Evitts and its progeny in state and federal courts, we can no longer subscribe to this overly limited view of the mandate of Evitts v. Lucey. Technically, perhaps, the United States Supreme Court's holding in Evitts can be limited to the facts then before the Court, but the Court's explanation of its ruling simply does not support such a minimalist reading. As the United States Supreme Court explained, In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful . To prosecute the appeal, a criminal appellant must face an adversary proceeding that-like a trial-is governed by intricate rules that to a layperson would be hopelessly forbidding . An unrepresented appellant-like an unrepresented defendant at trial-is unable to protect the vital interests at stake . To be sure, respondent did have nominal representation when he brought his appeal. But nominal representation on an appeal as of rightlike nominal representation at trial-does not suffice to render the proceedings constitutionally adequate ; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. 469 U.S . at 396 . There is no distinction implicit in this explanation between, on the one hand, counsel's procedural missteps that result in dismissal of an appeal and, on the other hand, deficiencies rendering a potentially favorable appeal substantively meritless . Indeed, the Court noted that while Lucey's case involved procedural mistakes, other cases dealing with the right to counsel-trial or appellate-had focused on the defendant's need for substantive assistance, for "`counsel's examination into the record, research of

the law, and marshalling of arguments on [the client's] behalf.' Id. a t 394 n. 6 (quoting Douglas v. California, 372 U.S . 353, 358 (1963), brackets in original) . The Supreme Court elaborated upon a defendant's right to the effective assistance of appellate counsel in Smith v. Robbins, 528 U.S . 259 (2000), a case in which the defendant's appeal had been dismissed as frivolous . The Court reiterated that on a first appeal as of right, "'[d]ue process . . . [requires] States . . . to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal .' 528 U .S. at 277 (quoting from Evitts, 469 U.S . at 405 (brackets and ellipses in original)) . That requirement, the Court explained, citing Anders v. California, 386 U.S . 738 (1967), does not prohibit the States from dismissing frivolous appeals . However, it does prohibit such a dismissal except where a defendant has had the assistance of counsel to find nonfrivolous grounds for appeal, and then, upon counsel's reasoned conclusion that no such grounds exist, the appellate court has independently determined that counsel's conclusion is warranted. Technically, therefore, Smith, like Evitts, addresses the right to counsel to ensure that an appeal of right is not improperly dismissed so as to frustrate an adjudication on its merits . Relying on this technical distinction between cases, such as Smith and Evitts, in which no merits brief was filed, and cases in which a merits brief has been filed and ruled upon, we have upheld our Hicks ruling even in the wake of Smith. See, e.g., Parrish v. Commonwealth, 272 S.W.3d 161 (Ky. 2008) . Smith, however, even more than Evitts, strains that distinction beyond what it can reasonably bear. Smith held that defendants pursuing a

first appeal as of right are entitled to counsel's effective assistance in identifying non-frivolous grounds for appeal as well as counsel's effective assistance in briefing and otherwise presenting an appeal based on those grounds . The standard for evaluating claims that appellate counsel was ineffective, the Court held, is the familiar "deficient-performance plus prejudice" standard applied to claims of ineffective trial counsel in Strickland v. Washington, 466 U .S. 668 (1984) Respondent [defendant] must first show that his counsel was objectively unreasonable . . . in failing to find arguable issues to appeal-that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them . If [defendant] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal. Smith, 528 U .S. at 285. If the failure to file a merits brief can constitute ineffective assistance, it would seem to follow that the filing of a merits brief that is grossly inadequate because it fails altogether to raise a meritorious issue could do the same . Not surprisingly, therefore, although in Smith the United States Supreme Court did not have before it an ineffective assistance of appellate counsel claim based on an assertedly deficient merits brief, the sort of claim this Court had before it in Hicks, the vast majority of courts has recognized that the right to the effective assistance of appellate counsel examined in the no-merits-brief circumstances of Smith extends naturally and by necessary implication to the

merits-brief situation . Gregory G. Sarno, Annotation, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Appellate and Postconviction Remedies, 15 A.L.R.

4th

582 (1982) . More is required of appellate

counsel than merely filing a brief. The Smith court itself observed that while appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal . . . it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent. 528 U .S. at 288. This statement by the United States Supreme Court clearly indicates that our Hicks distinction between merits-brief and no-merits-brief cases has no constitutional foundation, but rather undercuts a defendant's constitutional right to counsel's effective assistance in preparing a merits brief. We are thus persuaded that it is time, indeed past time, to overrule Hicks and the cases relying upon it and to recognize IAAC claims premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal. To succeed on such a claim, the defendant must establish that counsel's performance was deficient, overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy . As the Supreme Court noted in Smith, "'[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome .' 528 U.S . at 288 (quoting Gray v. Greer, 800 F .2d 644, 646

(7th

Cir. 1986)) . We further

emphasize "ignored issues" to underscore that IAAC claims will not be

premised on inartful arguments or missed case citations ; rather counsel must have omitted completely an issue that should have been presented on direct appeal . For further clarity, we additionally emphasize that IAAC claims are limited to counsel's performance on direct appeal ; there is no counterpart for counsel's performance on RCr 11 .42 motions or other requests for postconviction relief. Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which, as noted, requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded. Smith, supra. II . Merits-Based IA.AC Claims Should Be Raised in the Trial Court Pursuant to RCr 11.42. Having determined that Kentucky courts are to recognize IAAC claims in cases where the direct appeal has been decided on the merits, we must now consider how such claims are to be raised. As we have noted several times over the years, our rules governing review of a trial court's final judgment in a criminal case are meant to be organized and complete. The rules related to direct appeals, RCr 11 .42, and Kentucky Rule of Civil Procedure (CR) 60.02 collectively create a structure that "provides for wide-ranging opportunities for a defendant to challenge in all respects the legality and fairness of his conviction and sentence ." Foley v. Commonwealth, 306 S.W .3d 28, 31 (Ky. 2010) . At each stage in this structure the defendant is required to raise all issues then amenable to review, and generally issues that either were or could have been raised at one stage will not be entertained at any later stage. Gross v. Commonwealth, 648 S .W .2d 853 (Ky. 1983) . This structure, wide-ranging

but also finite and complete, is an attempt to balance society's and the defendant's interest in just and accurate criminal convictions with society's and the court's interest in the ultimate finality of judgments . Because the completeness of the current structure is one of its principal attributes, we look first to see if IAAC claims fit naturally at some point within it . Obviously, IAAC claims cannot be raised in the direct appeal, since it is precisely counsel's assistance with that now-concluded appeal that is at issue . Hollon brought his IAAC claim as part of his post-conviction motion pursuant to RCr 11 .42 . That rule permits "[a] prisoner in custody under sentence or a defendant on probation, parole or conditional discharge," to move the court that imposed the sentence "to vacate, set aside or correct it," on the ground "that the sentence is subject to collateral attack ." The rule does not expressly provide for IAAC claims, and generally it is used to attack alleged infirmities that arose during trial. Nevertheless, courts with rules very similar to ours have construed "collateral attack" broadly to include IAAC claims the gist of which is that a serious infirmity during trial should have received, but owing to appellate counsel's ineffectiveness did not receive, appellate review . See, e.g., Page v. United States, 884 F.2d 300 (7th Cir. 1989) ; State v. Herrera, 905 P .2d 1377 (Ariz . App. 1995) ; Commonwealth v. Sullivan, 371 A.2d 468 (Pa. 1977) . If, under the approach these courts adopt, the trial court finds ineffective assistance of appellate counsel, it may vacate the judgment of conviction and reenter it, thereby allowing the defendant an appeal in which to raise the neglected issue. Page, supra.

These courts answer concerns that such an approach allows the trial court in effect to order the appellate court to grant a new appeal by noting that all RCr 11 .42 rulings create the basis for a new appeal, that rulings granting RCr 11 .42 relief reopen judgments that may have been affirmed on appeal, and that IAAC claims do not challenge or require the trial court to pass on the appellate court's decision, but rather on the conduct of appellate counsel . Id. The appellate court, moreover, is not bound by the trial court's decision, which, like other RCr 11 .42 rulings, is subject to appeal by either party. Sullivan, supra. They conclude that there is no incongruity in having the trial court address IAAC claims, and there is the benefit that factual issues, such as possible questions concerning counsel's appellate strategy, may be addressed in the court best able to review them, i.e., the trial court where evidentiary hearings are a normal part of the daily docket. Other courts, however, have construed rules like our RCr 11 .42 as addressed exclusively to errors occurring in the course of trial. An order vacating and reinstating the judgment to permit the appeal of a neglected issue has the effect, these courts conclude, not of setting aside or correcting the judgment as contemplated by the rule, but of setting aside the appellate decision . They hold, accordingly, that a motion in the trial court for postconviction relief is not a proper vehicle for IAAC claims, and require instead an original proceeding in the appellate court where counsel's alleged ineffectiveness occurred . That appellate court is in the best position to judge appellate counsel's performance, these courts maintain, and fact-finding may

be assigned to a referee or to the trial court. See, e.g., Feldman v. Henman, 815 F.2d 1318 (9th Cir. 1987) (holding that IAAC claims must be brought by motion to recall mandate in the appellate court) ; State v. Knight, 484 N .W.2d 540 (Wis . 1992) (holding that IAAC claims must be brought as habeas actions in the appellate court) ; People v. Bachert, 509 N .E.2d 318 (N .Y . 1987) (holding that IAAC claims must be brought as coram nobis proceedings in the appellate court.) . This Court expressed similar concerns in Com. v. Wine, 694 S.W.2d 689 (Ky. 1985) where we held that a defendant could not invoke RCr 11 .42 on the ground he received ineffective counsel because his right to appeal had been allowed to expire or his appeal had been dismissed . The exclusive remedy in those cases, we said, was to move the appellate court for a belated appeal or to reinstate the dismissed appeal ; the appellate court's decision was not to be "litigated anew in the trial court pursuant to RCr 11 .42 ." Wine, 694 S.W.2d at 694. We explained that "RCr 11 .42 is designed to permit a trial court an opportunity after entry ofjudgment to review its judgment and sentence for constitutional invalidity of the proceedings prior to judgment or in the sentence and judgment itself. It is not an appropriate remedy for a frustrated appeal." Id. We certainly would reiterate that any issue, including the ineffectiveness of counsel, actually decided by the appellate court, whether on motion for reinstatement of a dismissed appeal or on direct appeal, may not be reopened pursuant to RCr 11 .42 . The trial court does not have jurisdiction to review appellate decisions. Nor do we see any reason to depart from Wine's

requirement that one seeking relief from an expired or a dismissed appeal do so by motion in the court with jurisdiction over the appeal. The botched appeal scenario is one instance in which it does not seem unreasonable to expect counsel to admit, if appropriate, a procedural mistake that had the effect of aborting the client's appeal and, in those cases, the appellate court is in the best position to assess whether relief is warranted. The Wine Court did not have before it the Hicks-type of IAAC claim, a claim based on counsel's alleged failure to include in an appeal, the merits of which have already been decided, a glaringly important issue . That sort of claim, we are persuaded, may appropriately be addressed to the trial court pursuant to RCr 11 .42, and hence we depart from and overrule Wine and its progeny to the extent that they suggest otherwise . The rule encompasses such claims, we believe, because although appellate counsel's performance is being attacked, the basis of the attack is an alleged flaw in the trial proceedings for which appellate counsel neglected to seek relief. The claim then is at root and in essence a collateral attack on the judgment, and RCr 11 .42 is, in our comprehensive scheme of post-conviction review, the stage at which such an attack is to be raised . The trial court is no less competent to assess in the first instance the seriousness of the alleged flaw and appellate counsel's reasons, if any, for bypassing a particular issue, than it is to assess trial counsel's alleged miscues and strategic choices, the mainstay of RCr 11 .42 litigation . We agree with those courts discussed above which find no incongruity in the trial court's assessing counsel's appellate performance, since, as those

courts note, no appellate decision is being disturbed . Page v. United States, supra . By vacating the judgment, the trial court is not reopening the appeal for reconsideration of any issue already decided . It is rather reopening the judgment, as it is authorized under the rule to do, so that a serious but theretofore unaddressed question about its validity may receive appellate review . We also agree with those courts that the trial court is the best place for consideration of the Hicks-type of IAAC claim to start. Not only is the trial court better able than the appellate court to address questions of fact, but there are obvious efficiencies to be gained by having both appellate and trial ineffective assistance claims addressed in a single proceeding . From a practical standpoint, the consolidation will prevent the delays and confusion that would result from separate courts, trial and appellate, needing the same case record simultaneously . It will also spare defendants and post-conviction counsel possibly difficult choices about which ineffectiveness claim, trial or appellate, to pursue first and the impact of that choice on the timeliness with which the other claim is pursued . We hold, therefore, that Hicks-type IAAC claims may henceforth be pursued by motion in the trial court of conviction under RCr 11 .42 . Our ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised . Prospective application is appropriate because, although our courts have not

until now provided a forum for IAAC claims based on an allegedly inadequate appellate brief; the federal courts have provided a forum through habeas review. See Boykin v. Webb, supra. Kentucky defendants have not, therefore, been denied an opportunity to vindicate their right to effective appellate counsel, and there is thus no need for our decision today to reach back and operate retroactively. For clarity, we note some general principles regarding the courts' roles in review of IAAC claims . The trial court will address the IAAC issue under the aforementioned standards entering findings and an appropriate order pursuant to RCr 11 .42(6) . Once the trial court rules on a defendant's IAAC claim, that court's order will be reviewable in the same manner as orders addressing RCr 11 .42 motions are currently reviewed. See RCr 11 .42(7) (either movant or Commonwealth may appeal from court's final order on RCr 11 .42 motion) . If the trial court finds that the defendant received ineffective appellate assistance and is entitled to relief under the Strickland v. Washington standard, as noted above, the trial court should enter appropriate findings and an order vacating the original judgment . We depart from the approach, adopted by some courts, which also requires the trial court to reenter the original judgment so that an appeal of the omitted issue may proceed . Kentucky trial courts should not reenter the original judgment . The matter-of-right appeal guaranteed by § 115 of the Kentucky Constitution has concluded and it is not necessary to reenter the judgment in order for the omitted issue(s) to receive

appellate review ; any omitted issue or issues will be reviewed as part-andparcel of the appeal of the trial court's order on the RCr 11 .42 motion . On the appeal of the trial court's order on the RCr 11 .42 motion, it is incumbent on the Court of Appeas4 to review in the first instance the trial court's ruling regarding IAAC . If the Court of Appeals concludes that there was ineffective appellate assistance, then it should proceed to address the omitted issue or issues on which the IAAC claim is based . 5 Should the Court of Appeals conclude that there was no IAAC meriting relief then, of course, it would be unnecessary for that Court to address the issue or issues omitted from the matter-of-right appeal . Any final opinion of the Court of Appeals would, as always, be subject to discretionary review by the Supreme Court pursuant to CR 76.20 . When appellate review of the matter is concluded, either by a final opinion of the Court of Appeals or by a final opinion of this Court after having granted discretionary review, and the defendant does not prevail, any prior vacation of the original judgment will be reversed leaving that judgment intact as originally entered . However, if the defendant prevails on the IAAC claim and an omitted issue justifies relief, the final opinion from this Court or the Court of Appeals will direct the trial court accordingly by either granting a new trial, ordering the correction of the judgment or ordering such other relief as may be 4

5

If the case resulted in imposition of the death penalty, of course, the appeal of the RCr 11 .42 ruling would come directly to this Court. Leonard v. Commonwealth, 279 S.W.3d 151 (Ky . 2009) . We recognize that these inquiries, IAAC and the merits of the omitted appellate issue(s), are intertwined but they are, nevertheless, separate determinations .

appropriate . Through this process, the order on a defendant's post-conviction motion alleging IAAC receives full consideration and any omitted issue which could merit relief is addressed, when appropriate, in the appellate review of the RCr 11 .42 ruling. As a final note, we recognize that if a trial court concludes that a defendant received ineffective assistance of appellate counsel and vacates the judgment, the aforementioned procedure provides for effective final resolution in all but potentially one instance . If the Commonwealth, for whatever reason, failed to appeal timely the trial court's order granting RCr 11 .42 relief, the matter would be in a legal limbo of sorts, with a vacated judgment but no appellate ruling on either the IAAC claim or the omitted issue(s) necessary to the determination of whether the defendant is entitled to some form of relief Accordingly, pursuant to our rulemaking authority, the Court amends RCr 11 .42(7) as follows : (7) Either the movant or the Commonwealth may appeal from the final order or judgment of the trial court ' on a motion brought under this rule . If the trial court finds the movant received ineffective assistance of appellate counsel and the Commonwealth fails to pursue a timely appeal, the movant may appeal the trial court's order by filing a notice of appeal within sixty (60) days after the date of notation of service of the judgment or order under Criminal Rule 12.06(2). If neither party has filed a notice of appeal within this sixty (60) day period, the trial court shall issue to the movant an order to show cause within ten (10) days why the judgment vacated on his behalf should not be reinstated . If the movant The vacated judgment alone would not entitle the defendant to any relief because it is not a judgment of acquittal . The charges would simply be unresolved.

fails to respond within ten (10) days orfails to show cause, the trial court shall reinstate the vacated judgment . If upon the movant's showing the trial court is satised that the movant's failure to appeal should not be deemed a waiver of his right to do so, it shall grant the movant an additional thirty (30) days in which to file notice of his appeal. The foregoing amendment should assure that the matter is pursued for the necessary final appellate resolution . Returning to the case before us, as a somewhat odd wrinkle, the trial court, notwithstanding Hicks, addressed Hollon's IAAC claim and denied relief because it concluded appellate counsel had performed adequately. The Court of Appeals invoked Hicks and, correctly under then-existing precedent, declined any further merits review. It would therefore appear to be unnecessary to remand this case to the trial court as we would ordinarily because that court has already addressed the IAAC claims . However, the Commonwealth notes that the trial court did not have before it the appellate brief filed by Hollon's counsel, relying instead on Hollon's present counsel's representations regarding the issues raised in Hollon's appeal. This illustrates the importance of a defendant appending to the RCr 11 .42 motion copies of the briefs filed in his or her matter-of-right appeal in order for the trial court to ascertain whether the allegedly omitted meritorious appellate issue was, indeed, not raised . Nevertheless, it appears there was never any dispute about the fact that the specific issues upon which Hollon now premises his IAAC claim were not included in his matter-of-right appeal . Under these circumstances, we find no reason to remand this case to the trial court to secure and examine the

direct appeal briefs . Our remand, therefore, is not to the trial court, as might have been expected, but to the Court of Appeals so that it may now take up the merits of Hollon's RCr 11 .42 appeal . CONCLUSION In sum, although in both Evitts v. Lucey and Smith v. Robbins the United States Supreme Court did not have before it a case in which appellate counsel's effectiveness was challenged following an appellate court's review of the defendant's appeal on the merits, the right to effective appellate counsel which the Court delineates in those cases clearly extends beyond the mere filing of a timely merits brief. Simply put, these cases require that an appellate brief itself satisfy basic professional norms pursuant to the standard enunciated in Strickland v. Washington and applied to an appellate ineffective assistance claim in Smith v. Robbins . We hereby abandon, therefore, the distinction we drew in Hicks v. Commonwealth between ineffective appellate counsel cases in which a merits brief was filed and the merits were considered and those in which they were not. The former, the Hicks-type claim, may, as of the rendering of this Opinion, be pursued in the trial court of conviction under RCr 11 .42 subject to the prospective application rule outlined above and to the noted limitation of IAAC claims to an issue or issues omitted in the direct appeal . RCr 11 .42, one of the remedies provided in what is meant to be Kentucky's comprehensive scheme of post-conviction review, readily embraces these IAAC claims, and does so with much less disruption to post-conviction proceedings generally than would a new procedural rule singling out IAAC

claims for special treatment in the appellate courts . Accordingly, we reverse the Opinion of the Court of Appeals and remand to that Court for further proceedings consistent with this Opinion . Minton, C .J . ; Cunningham, Schroder, and Venters, JJ ., concur. Noble, J., concurs by separate opinion. Scott, J ., dissents by separate opinion . NOBLE, J., CONCURRING OPINION: While I am fully cognizant that § 110 of the Kentucky Constitution requires review of sentences of more than 20 years by the Supreme Court, this Court is now recognizing a new right - the right to raise ineffective assistance of appellate counsel - which necessitates originating process that will efficiently deal with issues omitted on appeal due to defective performance of appellate counsel, and consequently this Court views these omitted issues of appeal as collateral rather than direct, and thus reviewable as part of an IAAC claim before the Court of Appeals . SCOTT, J ., DISSENTING OPINION : I must respectfully dissent from the majority's adoption of a new Ineffective Assistance of Appellate Counsel Rule . I do so because of the many new complexities it will present. Federal courts already review such allegations in federal habeas corpus proceeding and, where appropriate, grant or insure appropriate relief. See Wilson v. Parker, 515 F3d 682, 706-08 (6th Cir. 2008) . To adopt a broader rule now will necessarily open up our RCr 11 .42 relief to every defendant who, years ago, failed to raise a later-validated right-raised and won by someone else years later as society's perspective changed and evolved. Moreover, as courts tend to view new decisions as ones that should have been made years ago, we

will tend more and more to open up old cases on new issues that would not have been, or were not, validated in their day, solely on the supposition that appellate counsel of the time was ineffective for not preserving the issue then, a point that, most often, will not have been true for the time. My concern is: where will this new concept of ineffective assistance of appellate counsel end? As a case in point, I cite this Court's continuing, decades-old evolution in regard to the Merritt/Kennedy line of cases dealing with the operability of firearms .? Our state court system and its personnel are burdened more and more each year by increasing legislation and appellate court decisions expanding their jurisdiction and responsibilities while their budgets and personnel dwindle. Thus, I fear that-compared to the increases of their burdens before-this decision will be the equivalent of a flood, the effect of which will be felt for many years. It is for this reason-and the fact that we already have a system in place to address these issues under the federal habeas corpus standards-that I must respectfully dissent to this expansion, as well as its progeny to come .

7 Kennedy v. Commonwealth, 386 S.W.2d 727 (Ky. 1965) and Merritt v. Commonwealth, 544 S.W.2d 219 (Ky. 1976) were ultimately overruled by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010) .

COUNSEL FOR APPELLANT : Dennis James Burke Assistant Public Advocate Department of Public Advocacy 207 Parker Drive, Suite One LaGrange, KY 40031 Amy Robinson Staples Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, KY 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General of Kentuc Perry Thomas Ryan Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, KY 40601-8204

"iixyreme C~Vurf of ~rufurhv 2008-SC-000618-DG ROBERT HOLLON

V.

APPELLANT

ON REVIEW FROM COURT OF APPEALS CASE NO . 2007-CA-001053-MR FRANKLIN CIRCUIT COURT NO . 94-CR-00086

COMMONWEALTH OF KENTUCKY

APPELLEE

ORDER DENYING PETITION FOR REHEARING AND GRANTING MODIFICATION IN PART The Appellee having filed a Petition for Modification and/or Rehearing of the Opinion of the Court by Justice Abramson, rendered November 18, 2010 ; and the Court being otherwise fully and sufficiently advised; The Court ORDERS that the Petition for Rehearing is DENIED; and that the Petition for Modification is GRANTED IN PART, and modifies the Opinion . The attached opinion is SUBSTITUTED in lieu of the original . Said modification does not affect the holding. All sitting . Scott, J., would grant the petition for rehearing . ENTERED : April 21, 2011

CORRECTED : MARCH 29, 2011 MODIFIED: MARCH 24, 2011 CORRECTED: SEPTEMBER 20, 2010 RENDERED : AUGUST 26, 2010 TO BE PUBLISHED

,.;vuy ,rrmt Courf of

2008-SC-000383-MR

rnfurkV

SHAWN WINDSOR

V.

APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARTIN F. MCDONALD, JUDGE NO . 04-CR-000001

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING Appellant, Shawn Windsor, appeals a judgment of the Jefferson Circuit Court imposing two death sentences . Windsor entered an unconditional guilty plea to two counts of murder, one count of felony theft, and one count of violating a protective order. Windsor admitted that he murdered his wife, Betty Jean, and their son, Corey, by stabbing them with a kitchen knife and beating them with a dumbbell . Following Windsor's arrest some six months after the crimes, the case initially proceeded towards trial. On July 7, 2006, the day that the trial was scheduled to commence, Windsor took an overdose of prescription medication . He was taken to the hospital for treatment and later released. In light of

Windsor's suicide attempt, the trial court conducted a competency hearing on July 13, 2006 . Windsor was present. Two psychiatrists testified at the hearing. Dr . Tim Allen, a Kentucky Correctional Psychiatric Center (KCPC) psychiatrist, examined Windsor after his suicide attempt. Dr. Allen testified that he had reviewed three prior KCPC mental evaluations, all of which concluded that Windsor was competent to stand trial. Following his own evaluation of Windsor, Dr. Allen likewise concluded that he was competent to stand trial. Dr. Walter Butler, a psychiatrist at Louisville Behavioral Health Service, also examined Windsor and concluded that he was still suffering from the after-effects of the, prescription drug overdose . Accordingly, Dr. Butler found Windsor incompetent to stand trial at that time and recommended further testing. The trial court ruled the following day, determining that Windsor was competent to stand trial . Three days later, on July 17th, Windsor announced that he wished to enter a plea of guilty and accept a sentence of death . A Boykin hearing was conducted. In addition to the colloquoy required by Boykin v. Alabama, 395

U.S . 238 (1969), the trial court inquired about Windsor's health, prior mental health issues, current medication, and drug use. Windsor accepted complete and unqualified responsibility for the charged crimes. He verbally repeated his desire to plead guilty at least five times in open court, in addition to signing AOC Form 491 .1 (Commonwealth's Offer on a Plea of Guilty) and AOC Form

491 (Motion to Enter Guilty Plea) . The trial court made a finding on the record

that the plea was knowingly, voluntarily, and intelligently made, and then accepted the guilty plea . However, the trial court denied Windsor's request to be sentenced immediately. A two-day sentencing hearing was conducted in October 2006. The trial court found the existence of two statutory aggravating circumstances beyond a reasonable doubt: that Windsor intentionally caused multiple deaths; and that a valid protective order was in effect against Windsor at the time he murdered his wife . Against Windsor's repeated objections, defense counsel presented evidence in mitigation, including the testimony of a psychiatrist, a psychologist, and a mitigation specialist . The trial court ultimately sentenced Windsor to death for the murders of his wife and son, five years imprisonment for theft, and twelve months imprisonment for violation of a protective order. Windsor now appeals as a matter of right. Ky. Const. §110(2)(b) . Further facts will be developed as necessary. Subsequent Competency Hearing

Windsor first argues that the trial court erred by failing to postpone the proceedings until a subsequent, thorough competency hearing could be held . The claim is preserved by his RCr 8 .06 motion "to stay proceedings pending a determination of Defendant's competency in light of his request for the Court to impose the death penalty." The trial court denied the motion, stating that it had not been presented with any indication that Windsor's competency had changed since the competency hearing held just four days earlier.

(Ky be guilty with 8 this apostponed "reasonable do 2007) asserts does recognize death who lacks The outlines 8 Court respect and grounds See exist, and against hearing to grounds" to against not stand wants Chapman standard hold plead sentence provides the It that request is achallenge is the when to competency that whether capacity him to is within a grounds" a trial the guilty competency to language, standard hearing criminal whether question there enter va or of that "there trial following death Commonwealth, and her, review the the the to court all is aexist on defendant of to request appreciate a trial are Windsor's plea, hearing or trial trial a sentence proceedings reasonable RCr determine July of higher to the reasonable Gray to erred court's acourt court's participate and 8question trial aJuly 17th is death should vstandard 265 in seek for applies competency the mandatory abused court's Commonwealth, competency to sound denying 13th judge initial against the Ssentence determine nature the grounds be competency, rationally competency with two postponed decision discretion its death should determination of his 156, competency aequal murders and discretion to to as criminal Id to motion his penalty stand plead discussed 180 consequences have believe in force to 233 competency though to hearing his Nonetheless, (Ky conduct trial guilty experienced determine to Thus, defendant S with in versus or of 2007) for that stay finding later and her once regard an and the the Rather, awhen the in 715, the of to the such issue this no the to

RCr

.06

shall defendant proceedings defense ."' competency doubt

.

718

.

.

.W.3d

.

whether .

grounds

.

Windsor competency

.

Windsor proceeding .

plead before reasonable request

.

We individual

RCr .06 proceedings "reasonable competency Opinion.

.

.06 .

.W.3d 4

.

.

standard of competency to stand trial. Chapman v. Commonwealth, 265 S.W.3d 156, 181 (Ky. 2007) . The standard to determine competency to stand trial is whether, "as a result of a mental condition, [the defendant lacks the]

capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense ." Id. at 173-174 . Conversely, the standard to determine competency to plead guilty, waive jury sentencing and presentation of mitigating evidence, and request a death sentence is "whether [the defendant] has capacity to appreciate his position

and make a rational choice with respect to [pleading guilty, waiving jury sentencing, waiving mitigating evidence, and seeking the death penalty] or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises ." Id. at 180 (citing Rees v. Peyton, 384 U .S. 312 (1966)) .

While the trial court should have applied the heightened standard had it granted defense counsel's motion to stay the proceeding and hold a second hearing,2 the trial court did not abuse its discretion in determining that reasonable grounds did not exist to question Windsor's competency to plead guilty and request a death sentence . The trial court found Windsor competent to stand trial following a full hearing only four days before the RCr 8.06 motion was made. No evidence was presented with the motion indicating that Windsor's mental health had deteriorated since the July 13th competency 2 Although no Kentucky case had not yet adopted the Reese standard, we formally espoused the heightened standard since the time of the relevant proceedings. See Chapman, 265 S .W.3d at 180 .

hearing. See Harston v. Commonwealth, 638 S.W .2d 700, 701 (Ky. 1982) ("[Rule 8.06] does not place upon the trial court a duty to hold hearing after hearing in the absence of some appearance of change in the defendant's condition since the ruling on competency.") . Rather, defense counsel presented a letter from Dr. Butler, who restated his opinion that Windsor was incompetent based on his severe depression. However, Dr. Butler's letter was not the result of a new evaluation of Windsor, but simply a reiteration of the professional opinion he gave at the competency hearing. Furthermore, during the plea proceedings, the trial court questioned Windsor directly after defense counsel made the motion to stay proceedings. He stated that he felt fully competent and felt no residual effects from the overdose . The video record of the competency hearing reveals that Windsor's demeanor, responses, and affect in the courtroom were appropriate and coherent. Cf. Hunter v. Commonwealth, 869 S .W.2d 719, 7.24 (Ky. 1994) (citing defendant's "bizarre behavior" and

"inappropriate laughter" as factors in warranting RCr 8.06 stay of proceedings) . In essence, Windsor points only to his intention to plead guilty and accept the death penalty as a basis for a competency hearing.3 In Chapman, we specifically rejected the notion that a defendant who seeks to plead guilty and receive the death penalty is inherently incompetent. 265 S.W.3d at 175. In light of these circumstances, we do not believe that the trial court abused its discretion in denying the RCr 8 .06 motion. Windsor had been found competent to stand trial just four days prior, and no new circumstances were presented to 3 We reiterate that we are discussing a hearing to evaluate Windsor's competency to enter a guilty plea and seek the death penalty. 6

the trial court that would constitute "reasonable grounds" to question Windsor's competency to plead guilty and request a death sentence. Determination of Appropriate Punishment

Windsor next argues that the trial court failed to find beyond a reasonable doubt that death was the appropriate punishment . The issue is unpreserved for appellate review. Nonetheless, we consider the claim in light of the penalty imposed and pursuant to KRS 532 .025(2) . According to Windsor, the requirement set forth in KRS 500 .070(1) that the Commonwealth must prove "every element of the case beyond a reasonable doubt" applies to the capital punishment provisions of KRS 532 .025 . Thus, Windsor argues that the sentencing body - here, the trial court - must be convinced beyond a reasonable doubt that death is the appropriate penalty. Windsor claims that the trial court in this case failed to make such a finding. KRS 532 .025(3) requires that the sentencing jury or judge find beyond a reasonable doubt that at least one aggravating circumstance exists before a capital sentence may be imposed. There is no requirement in the plain language of the statute that the sentencing jury or judge must also make a determination beyond a reasonable doubt that capital punishment is appropriate . A majority of this Court has recently reaffirmed that Kentucky's capital sentencing scheme does not require the jury to find that death is the appropriate penalty beyond a reasonable doubt. Brown v. Commonwealth, S.W .3d

, n.2 (Ky. June 17, 2010). See also Skaggs v. Commonwealth, 694

Sew-2d. 672, 680 (Ky. 1985) ("There is no requirement that the jury be

instructed to find that death is the appropriate punishment beyond a reasonable doubt.") . Waiver of Jury Sentencing in Capital Case

Windsor claims that KRS 532.030(4) requires jury sentencing in capital cases, and that this requirement cannot be waived by the defendant. "Clearly, under Kentucky law a criminal defendant has a statutory right to have his sentence set by a jury." Wilson v. Commonwealth, 765 S .W.2d 22 (Ky. 1989) . In Chapman, we considered whether this right may be waived when a capital offense is charged : [W]e decline to declare that a defendant may not waive his right to have a jury fix his sentence. Such a holding would appear to be in conflict with RCr 9 .26, as well as our previous recognition that a defendant has the concomitant right to waive a trial by jury. We have not been cited to any authority that moves us to find that a defendant loses the right to waive jury sentencing simply because that defendant has pleaded guilty to a capital offense . 265 S.W .3d at 177 . Windsor has presented no persuasive reason to revisit this recent holding. Constitutionality of Judge Sentencing in Capital Case

Where, in the previous argument Windsor argued that jury sentencing cannot be waived under our statutory scheme, he next makes an identical argument under the Kentucky Constitution. Windsor asserts that Section 11 of the Kentucky Constitution prohibits the imposition of a sentence by a trial judge . Section 11 declares that no one can "be deprived of his life, liberty or 8

property, unless by the judgment of his peers or of the law of the land." Windsor argues that to the extent KRS 532 .025(3) relegates the sentencing jury to an "advisory role" - and that the jury's sentencing recommendation is not binding on the trial court - it is unconstitutional . However, Kentucky confers no constitutional right to jury sentencing. "The constitutional right to trial by jury extends to the trial of the issue of guilt or innocence where a plea of not guilty has been entered and does not extend to the fixing of the penalty ." Williams v. Jones, 338 S .W.2d 693, 694 (Ky. 1960) . See also Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594 (1945) ; Commonwealth v. Johnson, 910 S .W .2d 229, 230 (Ky. 1995) (recognizing in death penalty case that Kentucky constitution "fails to secure any right ofjury sentencing") . For this reason, Windsor's claim that KRS 532 .025(3) infringes upon a constitutional right is without merit. Record on Appeal

KRS 532 .075 mandates review by this Court whenever the death penalty is imposed . Subsection (1) of the statute requires that the review be conducted "on the record" and orders the circuit clerk to "transmit the entire record and transcript to the Supreme Court" for purposes of the review. Windsor argues that the review required by KRS 532 .075 cannot be conducted unless and until the circuit court prepares a written transcript of the proceedings in this case . Windsor further claims that the failure to consider a written transcript precludes attachment of our jurisdiction to conduct the required review.

KRS 532 .075 does not require that a transcript be prepared, nor does it require this Court's review to be conducted only on a written transcript of the proceedings . The plain language of the statute is that our review be conducted "on the record." Video recordings of the proceedings, along with the clerk's written record, constitute the official record on appeal. CR 98(3) . A video recording of the proceedings satisfies the requirements of KRS 532 .075 . We have also considered Windsor's request that the trial court's KRS 532 .075 report be "disregarded" by this Court. This argument is vague and it is not entirely clear what relief is being requested. Suffice it to say, the report is required by statute and the trial court, in this case, satisfied its statutory duty . Re-sentencing

In his final claim, Windsor asks that his sentence be vacated pursuant to KRS 532 .075(5)(b), which permits this Court to set aside a death penalty based on "the record and argument of counsel." In support of this request, Windsor points to the Commonwealth Attorney's refusal to consider a sentence other than death. He also urges that his sentence be vacated so that, upon remand, the sentencing judge or jury may be provided with comparison information in the form of similar criminal cases. Finally, Windsor reiterates his argument that his competency at the time of his guilty plea was questionable and

warrants re-examination . As an aside, Windsor notes that he no longer wishes to be sentenced to death.4 Windsor has presented no circumstance that would require reversal of his sentence . The Commonwealth enjoys broad discretion in its consideration of plea bargains and in its decisions with respect to the charging of crimes and the request for certain penalties . "The Commonwealth is under no duty to accept an offer of a plea in exchange for a sentence less than death ." Moore v. Commonwealth, 983 S .W.2d 479, 487 (Ky. 1998) . The mere fact that the

Commonwealth insisted on seeking the death penalty in this case is not an indication of prosecutorial misconduct or arbitrariness . There is no statutory authority for the proposition that the sentencing judge or jury must consider the comparative information described in KRS 532 .075(5)(b) prior to sentencing. The plain language of the statute is clear that the comparative information be provided to the lower court when re-sentencing is ordered.

For these reasons, we do not believe that re-sentencing is warranted in this case. KRS 532.075(3) Review

As required by KRS 532 .075(3), we have reviewed the record and conclude that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. The evidence supports the There is nothing in the current record on appeal that substantiates this sentiment. Regardless, even if such a request was of record, it bears no relevancy to the issues presently raised.

judge's finding that two statutory aggravating factors exist in this case. Specifically, Windsor admitted that he intentionally committed a double murder and that he murdered his wife while a protective order on her behalf was in effect . See KRS 532 .025(2)(a)(6) ; KRS 532 .025(2)(a)(8) . Having considered both the crimes and the defendants in similar cases, particularly those involving multiple murders, we cannot conclude that Windsor's punishment is disproportionate or excessive . Windsor admitted to the murders of his wife and eight-year-old son. Their deaths were the result of multiple stab wounds and bludgeoning inflicted by a dumbbell . The only appropriate characterization of Windsor's crimes is brutal, senseless, and exceedingly heinous . The penalty was not disproportionate or excessive in relation to Windsor's crimes or in relation to other defendants who have committed similar crimes . See Johnson v. Commonwealth, 103 S.W.3d 687 (Ky. 2003) (noting particularly brutal nature of murder) ; Chapman, 265 S .W.3d at 156 (involving murder of two children); Parrish v. Commonwealth, 121 S.W.3d 198 (Ky. 2003) (involving murder of adult woman and her ten-year-old son) ; Hodge v. Commonwealth, 17 S.W.3d 824 (Ky. 2000) (involving murder of husband and wife) . Conclusion

For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed . Minton, C .J. ; Noble, Schroder and Scott, JJ., concur. Abramson and Venters, JJ., concur except as to the issue of whether the appropriateness of 12

the death penalty must be determined beyond a reasonable doubt. On that issue, Abramson and Venters, JJ., dissent for the reasons stated in Justice Abramson's separate opinion in Brown v. Commonwealth, June 17, 2010), in which Venters, J ., joined.

S.W.3d

(Ky.

COUNSEL FOR APPELLANT: Daniel T. Goyette Louisville Metro Public Defender 200 Advocacy Plaza 719 West Jefferson Street Louisville, KY 40202 James David Niehaus Deputy Appellate Defender Office of the Louisville Metro Public Defender 200 Advocacy Plaza 719 West Jefferson Street Louisville, KY 40202 Shawn Windsor Inmate #182955 Kentucky State Penitentiary P. O : Box 5128 Eddyville, KY 42038 COUNSEL FOR APPELLEE: Jack Conway Attorney General James Hays Lawson Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601 David A. Smith Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, KY 40601-8204

'Suyrrutr (~Vurf of ~irufurhv 2008-SC-000383-MR

SHAWN WINDSOR

V.

APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARTIN F. MCDONALD, JUDGE NO. 04-CR-000001

COMMONWEALTH OF KENTUCKY

APPELLEE

ORDER DENYING PETITION FOR REHEARING AND GRANTING MODIFICATION The Appellant having filed a Petition for Rehearing and modification or extension of the Opinion of the Court by Opinion of the Court by Justice Cunningham, rendered August 26, 2010 ; and the Court being otherwise fully and sufficiently advised ; The Court ORDERS that the Petition for Rehearing is DENIED ; and that the Petition for Modification is GRANTED, and modifies the Opinion . The attached opinion is SUBSTITUTED in lieu of the original . Said modification does not affect the holding. All sitting . All concur. ENTERED : March 24, 2011 .

,*uyrrm.r (~vurf -of ~irufurhV 2008-SC-000383-MR

SHAWN WINDSOR

APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARTIN F. MCDONALD ; JUDGE NO . 04-CR-000001 COMMONWEALTH OF KENTUCKY

APPELLEE

ORDER OF CORRECTION The Opinion of the Court by Justice Cunningham rendered on August 26, 2010, corrected on September 20, 2010, and modified on March 24, 2011, is hereby corrected by substitution of the attached pages 1 and 5. The purpose of this Order of Correction is to correct a typographical error and does not affect the holding. ENTERED: March . q , 2011 .