Carver v. Commonwealth

in which he has mat- recipro- notify and courts why identical cause dent to show suspension imposed pending under ters of his from not be discipline cal should law, copies is- of said order was of and furnish practice A cause SCR 3.435. show the Director of the Respondent 2009. letters notice to of sued on October Furthermore, of the issue response, Kentucky file so Bar Association. failed impose now what, discipline possible necessary, is Re- any, if to the extent immediately this Court. ripe spondent for review shall cancel he any advertising cease activities which Rule Kentucky Court Supreme Under engaged. is subject iden- 3.435, shall Respondent be discipline in Commonwealth tical sitting. All All concur. proves by

Kentucky unless he substantial (a) jurisdiction fraud or a lack evidence: 21,2010. January ENTERED: proceeding, disciplinary out-of-state John D. Minton Jr. /s/ (b) misconduct established war- Chief Justice substantially discipline different rants 3.435(4). The Su- this Ohio State. SCR order, adjudica- a “final

preme Court’s as attor- jurisdiction that an

tion in another misconductf,]

ney been shall guilty has conclusively the misconduct

establish disciplinary proceeding of a

purposes 3.435(4)(e).

this SCR State.” why Respondent no reason Seeing Danny CARVER, Appellant, Lee subjected disci- not be to identical should 3.435, hereby pline in this state SCR is ORDERED that: Kentucky, COMMONWEALTH of Appellee. Kentucky pe-

1. Bar Association’s reciprocal discipline tition for GRANT- No. 2007-SC-000428-MR. Emerson, ED. Eric Lamar Respondent, indefinitely practice from the suspended Kentucky. Supreme Court Kentucky in the law Commonwealth Jan. 2010. for two and shall not seek reinstatement years. 3.450, Re-

2. with SCR accordance any

spondent is directed costs asso- pay disciplinary proceedings

ciated with these him, any,

against be and exe- should there may

cution for such costs issue from this upon finality Opinion of this

Court

Order. Respondent currently

3. Should 3.390, clients,

any pursuant to SCR

shall, entry days from within ten Order, notify all clients Opinion them, inability

writing represent of his

Ill Ransdell, Thomas More Assistant Public Advocate, Department Advocacy, of Public KY, Frankfort, appellant. Conway, General, Attorney

Jack Com- Kentucky, monwealth of Susan Roncarti Lenz, General, Attorney Assistant Com- Kentucky, Appel- monwealth of Criminal Division, Frankfort, KY, late for appellee. fight occurred because testified that OPINION MEMORANDUM Appellant was combative. THE COURT OF indicated a differ- Appellant’s testimony Carver, was con- Danny Lee Appellant, leading fight. to the of events ent version jury in Allen Circuit Court victed had been asked He testified third- first-degree burglary, April 2007 of derby due to exces- the demolition leave mischief, third-degree ter- degree criminal gave and that Witcher sive intoxication carrying concealed threatening, roristic He said that he and him ride. Witcher being first-degree deadly weapon, and to- night going of the before drank most (PFO). For felony offender persistent residence. gether Witcher/Deloe crimes, these sentenced fight testified that started ap- now fifty years prison. performed work his brother over right. Court as matter peals to this mother. Witcher’s 110(2)(b). § Ky. Const. fight between Witcher When arguments his Appellant asserts six intense, Deloe more Appellant became (1) he made before appeal: statements Bran- called Police. Officer the Scottsville in- receiving the Miranda warnings were Sergeant Cooke arrived don Ford and Jeff (2) trial, the prosecutor’s at his admissible Appellant on the scene to find conscious in the closing and questioning yard, having face in been but down the (3) improper, of tidal was a guilt phase physically Appellant beaten Witcher. acquittal on the offense directed verdict immediately and placed was handcuffed degree in the first should have burglary police police the cruiser. Both officers (4) closing prosecutor’s been the granted, out Appellant was of control testified that penalty phase the of trial was argument in Therefore, at and combative the scene. (5) presented the was improper, evidence Appel- police neither of the officers frisked the to support insufficient in the weapons placing him lant before conviction, his sentence is so PFO and police cruiser. alleged the crime disproportionate to and inves- Sergeant Officer Ford Cooke punish- cruel and unusual constitutes an air- tigated discovered at the house herein, the set forth ment. For reasons unit out of a window conditioner knocked PFO Appellant’s first-degree we reverse ground, cut-up pillow the a laying on convictions, conviction, other affirm his seat, baby car pillowcase, cut-up a old resentencing. and remand toy next and several cans of beer in a chest she dis- to the chair where Deloe testified 15, 2006, night April On or about Both Witcher and De- Appellant. covered at home of a occurred disturbance objects loe that the state of these testified Deloe, Witch- Kevin Witcher. Samantha they from left to was different when had that she dis- girlfriend, er’s live-in testified derby. the offi- attend the demolition As slumped Appellant covered house scene, at questioned cers witnesses returned from the over in a chair when she kicked the window of Appellant back derby. County Allen Fair As demolition out of track. police cruiser its jumped up Appellant, she he approached any- injury may not into he exclaiming that he did break of concern for Because Witcher, Appellant fight, one’s house. Deloe then called have sustained check hospital up. the then for a who returned home to confront taken hand- fight be- police A ensued officers removed unknown intruder. x-rayed. px*operly so that he could be Appellant. Witcher cuffs tween Witcher and staff hospital Appel- staff, As one aided risk to hospital patients, police offi- lant, cers, he over a table and a knocked raised himself. An exception to the Miranda knife, he Sergeant warning requirement which flourished. exists is at risk. New Yorkv. immediately public safety when Cooke asked what Quarles, 649, doing he a knife. with re- U.S. 104 S.Ct. (1984). sponded by saying L.Ed.2d Sergeant Cooke are There “situa- boy “needed to have his where concern for public safety [Officer Ford] tion[s] puts paramount check me little better before he me must be to adherence car.” Eventually, Appellant language literal prophylactic surren- rules trial, dered the knife. At Id. the knife was enunciated Miranda.” at type Hence, identified as a knife. 2626. police of steak Deloe S.Ct. officers in po- tentially dangerous testified the knife was out of a set she situations can ask questions owned. testified that he found that are necessary to establish safety may the knife the table had but questions he knocked over ask that are at hospital. designed to elicit testimonial evidence from Id. at suspect. 658-59, 104 S.Ct. 2626. 17, 2006, May County

On an Allen grand following knife, indicted Once Appellant flashed the Ser- charges: first-degree burglary, geant duty two counts Cooke had to quickly disarm mischief, third-degree criminal him and it, two ascertain he how obtained lest third-degree acquire counts terroristic Sergeant threaten- another. Cooke’s ing, carrying question deadly weapon, concealed intended prompt being provide and for confession first-degree PFO. The trial or incriminating evi- guilty found him all dence but charges except simply was the officer’s attempt immediately one the criminal mischief counts. He to a dangerous diffuse situa- years’ was to tion. fifty imprison- may preferable sentenced While it have been ment. police provide for the to the Mi- officers randa warnings prior taking to I. THE STATEMENTS APPEL- hospital, belligerent to the his and combat- LANT MADE TO PRIOR RECEIVING difficult, ive nature made such if warnings HIS MIRANDA AD- RIGHTS WERE impossible, not to provide. MISSIBLE AT TRIAL. however, Appellant’s argument, fails at Appellant’s first is that more fundamental level. The rationale the he at hospital statements made the Arizona, Miranda v. 436, 384 U.S. 86 S.Ct. regarding the knife he brandished were 1602, (1966), 16 L.Ed.2d 694 which has not they inadmissible at trial because were throughout changed the factual variations Miranda warn made the receiving before progeny, person of its is that an accused ings. Appellant attacks the admission of police custody inherently under pres- his statement it implies because that he sure, overt, or speak subtle to to police had armed with a dangerous weap himself silent. Miranda keep when he to ought house, on at raising potential Witcher’s his “compulsion [to refers the inher- speak] crime from second-degree burglary to ...,” Id. surroundings ent in custodial at first-degree burglary. KRS 511.020. No 1602, 86 S.Ct. and holds that “a warn- objection trial, was made at so the issue is ing right an [of the to remain silent] unpreserved. find no error. We prerequisite overcoming absolute the Appellant’s possession of pressure interrogation inherent of the at- Id. at hospital steak knife at the a safety mosphere.” created 86 S.Ct. 1602. object palpa- and so review for Here, technically police was failed we room; ble RCr hospital x-ray but he error. 10.26. custody oppressive inter- inherently was not in that Appellant first contends fact, he had tem- rogation atmosphere. multiple Cooke prosecutor Sergeant asked of the taken control and command porarily his questions that elicited impermissibly knife; point at of the situation force redi opinion guilt. as to On Appellant’s x-ray during control and was his rect, asked: excitedly asked what room that the officer upon you what saw Prosecutor: Based the knife. The fact doing with Carver was night, everybody acting, how was directly responsive that his answer was not [Appellant] acting, he was what how was question to the shows happened, you opinion form an did succumbing pressure inherent you whether believed [the as to or instead, was, custody. open He police him told version events police officers to Requiring defiance of it. night]? issue Miranda warning suspect to the [Sergeant responded that there Cooke holding knifepoint gunpoint at them every story, job his are two sides to to further Miranda deci- nothing does to take sides.] is not protecting preserving goal sion’s there, upon, you’re Prosecutor: Based Hence, Rights. Fifth Amendment admit- you how you happened, saw what saw ting hospital statements at the other, you to each saw people reacted knife not error. regarding the scene, you through went Appellant contends without house, Carver, you you Mr. talked to statement, is insufficient to evidence acting, you got he saw how was at the establish that he armed scene how acting he was observe and, therefore, burglary insufficient Okay. next several hours. Is there first-degree burglary charge. sustain the think, anything you that makes based Yet, adequate prove evidence existed to that, telling all of upon had knife when left that he Appellant you the truth? he concedes (Interestingly, house. Sergeant No. Cooke: fifty-year his that the sentence simply any- Prosecutor: There wasn’t pock- is excessive that knife was his you he thing at all that made think residence.) et at the Deloe testified while telling you truth? was belonged trial to at that the knife a set responded that he [Sergeant Cooke Additionally, police knives owned. she take of four witnesses would the word that officers testified could person’s one word.] over himself he was in custo- armed while you put the whole Prosecutor: When dy the time was during he handcuffed. any- together, of wax there ball QUES- II. THE PROSECUTOR’S [Ap- thing you that made believe he AND ARGUMENT TIONING CLOSING you the pellant] telling truth? IN THE GUILT PHASE WERE NOT Sergeant Cooke: No. ERRONEOUS. response to questions were asked These Sergeant Appellant’s next that cross-examination cross-examination, During Appel- prosecutor questions asked Cooke. inappropriate impeach Sergeant attempted to gave inappropriate closing argu lant into evi- testimony by introducing ment trial. guilt phase in the Cooke’s version, dence a memorandum wrote four Prosecutor: His what was incident, appeared which by? months after up backed sympathetic Appellant’s to version of the Nothing. Officer Cook: objected to prosecutor Appel- facts. The point, given Prosecutor: At and, lant’s use of the memorandum you’ve asked, questions been you do redirect, to that attempting show [Appellant] feel like to ought be un- just a report memorandum was charged? incident, Sergeant opinion Cooke’s No Officer Ford: sir. Appellant’s truthfulness. anything Prosecutor: Is there that’s light Appellant’s cross-exami [said], change your opinion been to Cooke, it Sergeant nation of becomes clear anyway about.... prosecutor’s questioning redirect Officer Ford: No sir. attempt Appellant’s was an to rebut cross- Responding attempted to examination. questions These were asked in to response impeachment evidence allowed on redi Appellant’s cross-examination where he at- Commonwealth, rect. See Sanders v. to tempted prior discredit Officer Ford’s (Ky.1990) (holding S.W.2d testimony. Appellant attempted to imply questioning on cross-examination defense Officer Ford at since arrived Witch- can open door to certain redirect ex ended, er’s house after the fight he could amination). We cannot find that not be a credible source information on injustice ques suffered manifest from this night. what happened that The defense entirely it is tioning. inappropriate While attempted to show that the police jumped for a questions give ask to conclusions and failed fully investi- a witness the chance to comment on a were, gate. prosecutor’s questions guilt, questions defendant’s these were not thus, designed to rebut im- so to rise to the egregious palpable level of peachment by showing that Ford Officer Additionally, error. was admon home, saw the condition of Witcher’s con- judge ished the trial are they observations, sidered the relevant and, therefore, judge credibility of witness charge Appellant still saw fit with they option knew had the discount Ser alleged Again, is inappro- crimes. while it geant testimony. Cooke’s See Tamme v. priate questions for a prosecutor to ask Commonwealth, (Ky.1998) give which opportunity a witness the jurors (holding presumed are to follow guilt, comment on defendant’s these court). an admonishment from the The questions improper were not and do not prosecutor’s questions are not palpable er rise the of palpable level error. ror. argues next that dur argues next that the fol ing guilt closing the phase arguments, the lowing questioning redirect of Officer Ford prosecutor impermissibly vouched the improper. Appellant pre was failed honesty police of the and other officers any objection question serve to this line of prosecution “Any witnesses. consideration ing: appeal alleged of prosecutorial miscon So, Okay. basically,

Prosecutor: what duct must center on the of overall fairness they’re everything and De- [Witcher reversal, the trial. justify order to the saying being by your is up loe] backed so prosecutor misconduct of the must be own senses? serious as to render the entire trial funda mentally Stopher Officer Cook: Correct. unfair.” v. Common- 118 (cita- up. why are So we’re dis- 787, (Ky.2001) lined that’s

wealth, 57 S.W.3d it. omitted). cussing tions prosecu- the Appellant further that commented, “Do I first prosecutor The telling by tor his error the exacerbated in going are to come that the officers think jury identify misdemeanor offenses how to lie, perjury, plead ... commit here in be- jury the instructions. falsehood, charges them- risk improper lieves this statement was be- fired, selves, pensions, risk their being risk him cause the to convict of urged it Deloe, I everything else? Samantha risk included burglary instead the lesser why would no idea she whatsoever Appellant argues this is misdemeanor. Appellant argues lie.” here and come impermissible sentencing because issues vouching the cred- this constituted that prior penalty the not be raised should impermissible. and is ibility of witnesses a trial. v. Common- phase of Norton Garza, 659, 608 F.2d States v. United wealth, (Ky.2001). We 37 S.W.3d Francis, (5th Cir.1979); States v. United agree potential that the sentence be Cir.1999). (6th F.3d guilt imposed not be raised the should not the These statements do constitute trial, that phase of a but we conclude credibility as to the opinion expression ease prosecutor remarks of the in this do prosecutor simply the witnesses. The sentencing Moreover, not issue. raise point had no argued the that witnesses during it permissible we that note a fair to lie. was comment on reason This guilt phase to discuss the differences credibility light of his witnesses elements of various offenses described strategy show that Appellant’s trial These instruc- the instructions. standard, curious, lying. previ- yet were had tions of them contained by judge requirements the trial that the must find un- ously been instructed burglary der judge charge offense they are the ultimate of wit- finding was committed “before the credibility. These statements did ness’s and, trespass indictment” under of Appellant’s undermine fairness charge, the offense committed rights. process trial or his due There finding “within months twelve before no error here. in context with the indictment.” Taken Finally, Appellant argues argument, apparent the entire it is im prosecutor this comment explain felt need to proper: instruction, jury may to a seem which discussing Part of we’re strange, being imagine the reason hard to how an [Appellant’s may be before the burglary, indictment returned that, is, charged of the therein. quite commented on commission crime counsel] clumsily phrased His but charge. most frankly, that’s the serious stray the arena that, prejudicially did not into quite frankly, That’s the one he’s and, thus, did sentencing comment on you If Okay? worried about. come back a deprive Appellant of fair trial. and, him compromise out and find charge guilty on the first or amend only statements ex- prosecutor’s The a it down to the misdemeanor on like why he had so much time plained spent that, something criminal or like trespass first-degree burglary. The discussing frankly it’s, Appel- to the fact quite going its be best not allude to the comment does It day charged being over at that lant with a PFO. is happened ever was to allow the just way charges permissible the the the table. That’s verdict, for the he On opportunity plead to outcome motion directed v. hopes Slaughter reaches. trial court must fair draw all and reason- Commonwealth, (Ky. 744 S.W.2d able inferences from the evidence in fa- 1987) (holding parties great that both have vor the Commonwealth. If the evi- making arguments). dence is leeway closing sufficient to induce a reasonable juror is no here. beyond There error to believe a reasonable doubt that guilty, defendant is a THE III. TRIAL PROPER- COURT directed verdict should not given. be LY DENIED APPELLANT’S DIRECT- the purpose ruling motion, For on the ED ON THE VERDICT MOTION trial court must assume that CHARGE OF FIRST-DEGREE BUR- true, evidence for the Commonwealth is GLARY. but to reserving jury questions as to Appellant next that he credibility weight to given be to a should received directed verdict testimony. review, such On appellate acquittal first-degree on the offense of bur is, the test of a directed verdict if under glary. Appellant argues KRS 511.020. whole, as a evidence it would be there was insufficient evidence pre clearly unreasonable for a to find to sented show he entered Witcher’s house guilt, only then the defendant is entitled intending particu to commit a crime. a acquittal. to directed verdict of lar, Appellant argues night Id. at 187. question, excessively he was intoxicated standard, Under the trial court and, hence, to form the unable intent properly denied motion for a commit a KRS crime. 501.080. directed verdict of acquittal charge KRS 511.020states: burglary. The evidence person guilty burglary A presented juror allows reasonable to be- when, degree with the first intent lieve that Appellant was inside Witcher’s crime, knowingly commit he enters house with the intent to commit a crime. unlawfully building, or remains in a Appel- Deloe testified that the steak knife entry when in effecting or while lant at hospital brandished came from building in the or in the immediate owned, strongly imply- set knives she therefrom, he or flight partici- another Further, ing that the knife was stolen. in the crime: pant destroyed pillowcase, cut-up seat, car (a) explosives Is armed with or a displaced amply beer support the inference deadly or weapon; looking something (b) physical injury any per- Causes steal intended commit the not a participant son who is in the of criminal crime mischief. See Anastasi crime; or Commonwealth, 754 S.W.2d (c) Uses or threatens the use aof (“Intent (Ky.1988) can from be inferred dangerous against any instrument the actions of accused and the sur- person is not a participant who rounding The has circumstances. the crime. inferring wide latitude in intent from evidence.”). A regard trial court’s decision of his intoxi- evidence ing a directed verdict com- compelling motion reviewed cation not so as to Hence, pletely negate under the standard articulated in the issue of intent. Com Benham, monwealth v. 186 it to find unreasonable for (Ky.1991): Appellant guilty burglary. convic- long Appellant’s prior the motion the list of properly denied trial court

The on the as acquittal presented that were to the a directed verdict tions first-degree burglary. support conviction and charge of evidence a PFO prosecutor an enhanced sentence. The CLOSING THE PROSECUTOR’S IV. the regarding to make comments allowed THE PENALTY IN ARGUMENT Slaughter, presented. evidence REVERS- OF TRIAL WAS NOT PHASE at 411-12. The com- prosecutor’s S.W.2d IBLE ERROR. ments do constitute error. next Appellant’s the argues that then com improper made prosecutor that the the prosecutor improperly encouraged closing during phase the penalty ments community a harsh the message to send if the to see argument. Again, we review through their sentence: constitu violated comments the only person If he were that knew him a process or caused rights tional due this, going that’s But this is about fine. Stopher, fundamentally unfair trial. ingo paper, the and he’s not the last Appel at 805. first statement The we deal he’s not defendant with. And alleges to be is: lant error only person getting charged Allen Quite persistent felony offender. last, County. only per- He’s not frankly, degree, first burglary going this. son who’s to know about twenty. That’s range is ten to penalty Quite frankly, multiple people who have somebody weap- If has a way is. understand, you’ve got (cid:127) —(cid:127). I to be home, somebody’s Legislature “Man, sitting thinking, there that’s a lot know, just says, “You can’t have we But you up of time.” when count you can’t have people, that.” We have over those number sentences he’s had your That’s to be safe own home. years. Okay? People are convicted who it. a first time just part they’re If felony crimes have a much better feel a, in, a 19- it’s it’s person come penalty they’re looking for the ranges something stupid kid who year-old does conduct, at, doing you than do because in, realistically, you also have and comes you’ve you never seen But if it before. we’re, going to trust we’re two, three, four, have or five try tag offender and first-time convictions, know, you you’ve because try give him in throw there. You attorneys, had discussions with people who in the first time come you’ve ranges, looked at penalty just That’s it is. That way break. you’ve seen all this stuff. apply doesn’t here. comments these

Appellant argues that this comment was attempt by to ca prosecutor were was tell improper because the jole message” into “sending ing already that he has considered against County. crime in Allen com Such that a lenient leniency and determined inappropriate ments have been held to be Cf., v. Caldwell inappropriate. sentence is States arguments. United 2633, closing Mississippi, 105 S.Ct. U.S. Solivan, (6th 937 F.2d Cir. (holding prose 86 L.Ed.2d 231 1991). only briefly The comment alludes closing argument phase, at penalty cutor’s imposed to the fact sentence to be jury’s responsibility which diminished the some on other may sentence held im deterrent effect imposed, for the to be However, offenders; proper). repeat points trial record indi and it out ordinary juror, only repeat cates that this comment referred unlike the offenders THE EVIDENCE APPEL- likely to familiar the severe FOR are be with V. range persistent for LANT’S FIRST-DEGREE PFO CON- penalty established are felony legitimate offenders. Those SUFFICIENT, VICTION WAS BUT put perspective comments that on the THE JURY IS A INSTRUCTION PAL- jury of has range penalty to con PABLE ERROR. sider. next there was prosecutor’s The comments do not rise insufficient evidence to support his convic- to level of palpable error. While “send tion for being first-degree persistent a fel- message” impermissible, a arguments are ony offender. This unpre- the comments made here served, and so we will our review under a compared are mild with other “send palpable error standard. RCr 10.26. He message” comments we found not to con specifically cites two for pur- reasons Young v. error. See Com palpable stitute (1) ported insufficiency: prior one monwealth, 66, 73 (Ky.2000) 25 S.W.3d jury offenses instruction was a mis- (comment that the defendant’s sentence demeanor, proof there was no message throughout “send a

would age. his community you start manufactur [that if] ing methamphetamine Muhlenberg Although instruction was County you’re gonna ... receive the maxi incorrect, the evidence ample sup to punishment mum give you,” that we can port a first-degree PFO conviction. The message people send a to these “[t]o jury instruction as tendered the first- to type activity []” discontinue this degree charge PFO instructed the error); found not to palpable constitute could be guilty found Mitchell, v. Commonwealth S.W.3d a being first-degree if it PFO found be (statement “if (Ky.2005) we are yond doubt, a among reasonable other to drug make a dent in a ever terrible things: problem got, prescription drugs we’ve with prior 16, 2006, That April to the de- Oxycontin, message it’s time to a to send fendant was convicted of to Attempt community this defendant and to this Third-degree Commit Arson case No. going punish drug we’re to dealers 93-CR-00007, by judgment final doing they’re doing. what It’s we time Septem- Allen Circuit entered on Court message,” send a found to be palpable not 10,1993; ber Commonwealth, error); Brewer 16, 2006, prior April That to de- (Ky.2006) (prosecutor’s fendant was convicted of Theft by Un- including, “And, they’re comments going to Over Taking lawful case No. 05- $300 way hear about County jury Owen CR-00083, final judgment of the Al- this, views and so that’s important. February Circuit len Court entered community’s it. going to know about 9, 2006. They’re we going to know whether correctly notes that And, attempt up have the backbone to to it. stand commit is a A third-degree arson Class message your so there is a with sentence See KRS felony. not a misdemeanor and you’ve got to consider that” found 506.010(4)(d) error). (attempt a palpable to commit Class C strongly be While we or D disapprove attempt get third-degree of an like arson is misdemeanor). Hence, A based sending render verdict a mes Class sage community, the comments reasons that the could not convict him here being do not constitute palpable error. PFO under this 122 because, date; case, as but Indictment a matter of one 95-CR-

jury instruction security law, the offenses identified showed a social number only one of (XXX-X0-XXX0) digits felony. with two different therein was (XXX-X2-XXX2). from all the others of the offense of To the elements prove objec- very With little discussion no presented the PFO, the Commonwealth tion, felony conviction was removed Allen Circuit Clerk. testimony of instructions; jury from the and one of the Appellant’s convic- prior clerk testified September four convictions from 1993 was Appellant’s more tions. In addition any of the Although September inserted. convictions, the twenty than misdemeanor felony could convictions have been felo- prior clerk five testified selected, third-degree attempted arson was felonies, Three of those ny convictions. realized, chosen. later As was offense erroneously placed plus the misdemeanor actually a misdemeanor. instructions, sepa- were contained judg- but resulted in final rate indictments Appellant next September 1993. all entered ments first-degree PFO conviction should be Thus, a PFO those purposes charge, for overturned because the Commonwealth only one prior constitute convic- offenses beyond failed to a reasonable prove doubt 532.080(4). tion. Those three felo- KRS felony that the offenses prior were com (Indict- (1) third-degree nies are: arson mitted was over the Appellant age when (2) 92-CR-00052), first-degree bail ment trial, eighteen. At the Commonwealth (Indictment 93-CR-00033), and jumping final presented the date of the convictions (In- property receiving stolen over $300 for each felonies but failed to pres of the 93-CR-00041). The misdemean- dictment any ent evidence of date which the or was case number 93-CR- conviction crimes were committed. Evidence was felony the three Any 00007. convictions however, Appellant presented, qualify from 1993 would as one September felony born 1957 and most charge. the PFO On October element of in the 1990s. convictions occurred 25, 1995, Appellant again was convicted (In- property over receiving stolen $300 Commonwealth, In Martin v. 13 S.W.3d 95-CR-00009). dictment That conviction (Ky.1999), it was held that a “reason- qualifying stands as a second conviction by jury able made inference” Finally, charges. PFO was necessary require- element satisfies the 9, 2006, February convicted on Id. ments the PFO statute. at felony taking of theft unlawful offense Commonwealth, overruling Hon (Indictment 05-CR-00083). over $300 (Ky.1984). A in- “reasonable That as a qualify- conviction stands third process reasoning by ference ... is a ing conviction. which a as proposition logical is deduced consequence already for the from other facts Initially, the instructions matter, proven.” PFO contained as of that Id. In this charge elements only given the latter two To date of the crime indictments. birth was, fact, be the dates of the convictions for certain the felo- “Danny Lee Carver” named in nies. The could make a same reasonable conviction, each the clerk inference that eigh- had testi- since turned security likely fied teen in at to the birth date social 1975 that committed least two felonies after that identifying number defendant on each of these date prosecution case. All birth since the for the felonies did cases showed same erly Nevertheless, not occur until the 1990s. There is no instructed. palpable error error here. was instructed on prior misdemeanor prior felony, and a prior as opposed to two Although reject Appellant’s argu we upon felonies. It was this instruction that ment that there insufficient evidence Appellant was convicted. prove age, to his we conclude that his first- PFO must degree conviction be reversed Facts are things. stubborn No jury because the erroneous instruction explanation amount of trial evidence at qualifying a misdemeanor as a listed can change indisputable duly truth. A felony palpa conviction. We believe properly selected jury by and sworn found (1) the im ble error occurred because of unanimous verdict that been had proper inclusion of a as a misdemeanor attempt convicted of to commit third-de qualifying conviction the PFO instruc arson, gree misdemeanor, a and theft (2) tion; presumption our that erroneous $300.00, taking unlawful felony. over a prejudicial, jury Harp instructions are v. an permit Such instruction finding would Commonwealth, 813, (Ky. 266 S.W.3d 818 second-degree to be a persistent 2008); fact that and Carver was However, felony we, ap offender. as an possible penalty. the maximum assessed court, pellate cannot affirm a conviction for greater a status than jury that which the case, jury accepted a to a try When is would permit. instructions try must swear to the case in accordance with the evidence evi- law. It jury is for a unreasonable stand; dence comes from the witness convict an individual properly without hav through law comes from the court ing been instructed to the as elements of Here, instructions. under the instructions Commonwealth, Harper crime. In v. court, jury the trial found this Court held that failure to instruct the guilty being persistent felony a offender jury on the element intent in charge a degree the first under an instruction complicity for was reversible error. 43 only that establishes the elements for a 261, Similarly, S.W.3d 263-64 (Ky.2001). persistent felony offender in the second Commonwealth, in Varble v. this Court words, degree. jury other found a manufacturing reversed conviction for beyond only Ap- a reasonable doubt methamphetamine jury because the had pellant had prior one misdemeanor and actually on been instructed of lesser felony. prior one possession drug paraphernalia. fense of 246, question

There is no (Ky.2004). 125 Other 255 could qualify persistent as courts have also recognized that convic Moreover, felony jury offender. there is no tion if cannot stand instructions ample pre- doubt that there evidence did not include essential element sented at trial for him to con- have been offense.1 These cases illustrate the neces accordingly, jury sary victed prop- jury had been recourse when the is in- 1, Mills, 909, (3rd 1. Stansfield, See State v. 154 Wash.2d 109 101 F.3d 922 Cir. 415, (2005) (reversing 1996) P.3d conviction (holding intent ele omission of to kill remanding for harassment error, consequently ment constituted revers new trial failure instruct the ing remanding); People, Chambers v. elements); State, statutory Smith v. (Colo.1984) (reversing 682 P.2d (Ind.1984) (finding N.E.2d revers- second-degree kidnapping be conviction remanding ible error for new trial due culpabili cause was not instructed as to requisite to failure to instruct the on the ty). murder); attempted intent convict U.S. error; otherwise, higher of the than harmless fully as to elements structed palpable error would be lower standard and remand. at hand —reversal crime error, which, harmless, if preserved than reversal of the PFO issue Accordingly, the instruction not reversible. While itself and we would remand for required; admittedly defective because it mis- only. A of the PFO retrial new trial misdemeanor named conviction as a seems to be a small the PFO conviction conviction, the prior felony pre- evidence integrity of our price pay protect multiple sented to the included felo- Because re- we now jury instructions. nies, any have been of which would suffi- PFO conviction and re- verse from judgment cient to sustain the which any proceedings new PFO and mand for fact, appeal there no is taken. consistent with this proceedings other that —had reasonable doubt ob- arguments regarding all opinion, other jected trial court on put notice of of his enhanced sentence appropriateness the problem felony of the other con- —one moot. are now rendered properly victions have been would inserted error; in the to correct instructions VI. CONCLUSION. and the outcome of this case would have herein, reasons set forth For the been exactly the same. judgment and sentence the Allen Circuit Thus, affirmed, reversed, given in in part, this error was harmless be- Court doubt, yond any for a I must part, pro- respectfully and remanded new PFO dis- sent. ceeding. MINTON, C.J.; sitting.

All

ABRAMSON, CUNNINGHAM, NOBLE,

SCHRODER, VENTERS, JJ., concur. concurs,

SCOTT, J., part,

dissents, separate part, by opinion. SCOTT, J., concurring, part, TURBYFILL, Appellant, Basil part: dissenting,

Although majority I concur with issues, respectfully I must dissent other BRANCH EXECUTIVE ETHICS reasons on Issue V for the error was COMMISSION, Appellee. can never “palpable harmless. You No. 2008-CA-001394-MR. error,” the error is—as it here— if Here, three other harmless. Appeals Kentucky. Court of convictions of were evi- Nov. 2009. significantly dence—none of which were Thus, questioned. the fact trial 29, 2010. As Modified Jan. erroneously inserted court the misdemean- was plainly

or in the instruction harmless. doing creating

What I fear we are here is error palpable pre- class of lower than

served error. “palpable opposed to

To find error” —as you

structural must reach a level error —

Case Details

Case Name: Carver v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jan 21, 2010

Citation: 303 S.W.3d 110

Docket Number: 2007-SC-000428-MR

Court Abbreviation: Ky.