Marcus Powell v. Commonwealth of Kentucky
2016 SC 000118
Ky.Apr 25, 2017Background
- Marcus Powell and Christina Hughes lived in a residence previously shared with Justin and Jeannette Massengale; tensions arose after the Massengales moved out and the house was burglarized several times.
- Hughes retrieved a gun from a relative after suspecting the Massengales of the burglaries.
- A confrontation occurred: Powell, Hughes, and two others assaulted Jeanette’s brother Jojo after suspecting him of taking Powell’s property; they then went to the Massengale home.
- While Justin Massengale stepped outside to check on Jojo, shots were fired at the Massengale residence; bullets struck trash cans ~5–6 feet from the door and other nearby structures.
- Powell and Hughes were arrested and tried; a jury convicted Powell of criminal attempt to commit first-degree murder (principal or accomplice) and found him a second-degree persistent felony offender, producing an enhanced sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency / directed verdict on attempted murder | Commonwealth: evidence (shots fired toward Justin with bullets striking close proximity; assault context) supports inference of intent to kill | Powell: no proof of intent — unknown shooter, no evidence of aim/skill, uncertain which shots occurred while Justin was outside | Denied. Viewing evidence in favor of Commonwealth, a reasonable jury could infer intent to kill; no palpable error. |
| Jury statements / Sixth Amendment (jury nullification) | Commonwealth: judge’s reminders to follow law were proper and parties agreed to the court’s answer to the jury’s question | Powell: judge’s voir dire comment and answer to a jury question improperly discouraged jury nullification and infringed Sixth Amendment rights | Denied. The court properly instructed jurors to follow the law; parties agreed to the response; no violation of nullification rights or palpable error. |
| Jury instructions / unanimity (principal vs. accomplice theories) | Commonwealth: combination instructions are permitted; evidence supported either theory (Powell or Hughes shooter) so verdict remains unanimous | Powell: instruction allowed conviction as principal or accomplice without ensuring unanimous agreement on the same theory; failed to list both other individuals as possible principals/accomplices | Denied. Combination Instruction was permissible; sufficient evidence supported both theories; no non-unanimity or palpable error. |
| Admission / invited error regarding jury question response | Commonwealth: parties jointly approved court’s brief response | Powell: court’s brief response prevented jury from considering nullification | Denied. A party cannot invite error then complain; the agreed response was not inappropriate and did not interfere with deliberations. |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (directed-verdict standard)
- Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992) (intent requirement for attempted murder)
- United States v. Avery, 717 F.2d 1020 (6th Cir. 1983) (jurors must be instructed to apply the law as interpreted by the court)
- Halvorsen v. Commonwealth, 730 S.W.2d 921 (Ky. 1987) (combination jury instructions permissible)
- Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999) (Kentucky permits inconsistent jury verdicts)