Cuzick v. Commonwealth

CUZICK, Appellant, Mark Kentucky,

COMMONWEALTH

Appellee.

No. 2007-SC-000466-MR. Kentucky.

Supreme Court

Jan. 2009. May,

Euva D. Assistant Public Advo- cate, Department Advocacy, of Public Frankfort, KY, Appellant. Counsel Attorney Jack Conway, General of Ken- Abner, tucky, Bryan David Assistant At- torney General, Attorney Office General, Office of the Criminal Appeals, Frankfort, KY, for Appellee. Counsel Opinion by of the Court Justice SCOTT. Cuzick, Appellant, Mark was convicted County jury a Jessamine by first-degree fleeing arrest, evading, resisting oper- influence, ating a motor under the vehicle of being persistent felony offender. crimes, Appellant For these was sentenced (20) twenty imprisonment. years He appeals judgment now and conviction pursuant a matter of right, Ky. 110(2)(b). § Const. principal allega- raises four underlying proceed-

tions of error in the 1) ing, impermissible to wit: testimo- ny during sentencing introduced 2) trial; phase of trial court erroneous- ly permitted testimony to narrative accom- 3) police chase; pany the videos of the introduction of the two chase videos in front of his cruiser positioned substantially preju- cumulative brakes, 4) attempt- applied the Common- Appellant; and diced Appellant, howev- his vehicle. slow to define impermissibly allowed wealth sped past. er, Sapp around and veered dire. For during voir reasonable doubt reasons, Appellant’s find following we eventually began Appellant’s automobile thus, and, affirm unpersuasive arguments hood, whereup- from beneath to smoke and sentence. the trial court’s convictions in the light halt at a red on he coasted to a then lane. The three officers emergency I. BACKGROUND guns drawn and exited their cars with Bradley Sapp police car, officer ordering Nicholasville him Appellant’s approached car on driving in a marked was on his Appellant to exit vehicle. 16, 2006, Ap- he observed December when ignored the time and phone cell at a northbound car turn south into pellant’s Appellant They ordered officers’ orders. traffic, wrong driving the direction. lane of more three to four exit the vehicle to directly Sapp who veered The car came times, comply, he and when would Sapp, to it. lane avoid opposite into him from the forcibly removed officers time, on his off-duty at the turned so, offi- doing who was they were car.1 While camera, the in-car and lights, turned on Ap- alcohol. strong a smell of cers noticed Appellant. officers, of began pursuit to resist pellant continued ground on the them struggling with Appellant, who caught up with Sapp him. they attempted to handcuff oncoming facing against stopped still while arrested, Sapp traffic, subsequently behind him. As pulled Appellant was County began approach to Jessamine charged his vehicle and tried a exited car, away into Appellant sped fleeing/evad- of Appellant’s guilty found jury. He was pursuit, arrest, Sapp driving resumed under oncoming resisting traffic. ing police, in the cor- Appellant first-degree to traveling parallel being a the influence and on spotlight offender, trained and sentenced felony rect lane persistent (20) years imprisonment. car. Appellant’s twenty Corporal Faddasio and Officer Jason II. ANALYSIS ra- Sapp’s Fleming responded Michael Burglary Convic- Fleming As of Prior for assistance. A. Evidence request dio Scope of Truth Appellant he Exceed vicinity, in the saw tion Did Not arrived Sentencing wrong lane. him in the Statute. driving toward steep grass then cut across a Appellant error, Appellant allegation first his ears fell line patrol All three median. by allow- the trial court erred argues that pur- The Appellant. chase of high-speed jury, to read ing the Commonwealth three to approximately suit continued citation, the substance from a 1993 uniform in excess of speeds miles and reached four Appellant prior burglary conviction. (85) hour, during per miles eighty-five description by reading claims driving erratical- time mentioning offense, in particular to side. weaving from side ly and to break a baseball bat used of a commercial on the front door “rolling glass execute a attempted Sapp entry, the Commonwealth building gain Appellant, on where- maneuver roadblock” hear, him to exit first ordered after officers although Appellant be noted that 1. It should somebody." just to call responded, "I want hearing on a aid nearly deaf and relied See, scope Ap- ering e.g. exceeded the an sentence. appropriate KRS 582.055. pellant alleges further that this informa- v. S.W.2d Williams vein, In that (Ky.1991). infringed upon process rights tion his due that, can be ac- generally, goal held sentencing hearing. and necessitates a new limiting description complished while disagree for We reasons the testimo- “nature of a conviction” to prior ny merely general description crime.” “general description of the Robin- crime, permitted by nature of the son the statute. (Ky.1996). During sentencing phase, the Com- Robinson, Court, by way In the of dem-

monwealth introduced a 1993 uniform cita- onstration, an points to Williams ex- “[a]s tion, others, among penalty phase as a ample type of the of evidence that would purposes exhibit for the establishing of right be ... [and] admissible would be persistent felony as a offender. type demonstrating of evidence” In so doing, the read the Commonwealth Robinson, prior “nature” of the offense. following from the burglary citation: “1998 926 at 855.2 Robinson notes that S.W.2d third. Fayette County. Subject utilized a Williams, the defendant asked “was baseball bat. glass Broke the of the front during sentencing been whether had door of in Lexington Autosound and took ” ‘beating up.’ convicted of wife Id. [his] several items of value. force to en- Used Williams, 513). (iquoting 810 S.W.2d ter business and steal from that busi- a proper example, what Robinson termed Appellant argues by ness.” disclosing “prosecutor complaint then read the information, this the Commonwealth went ” added). jury. (emphasis Id. This is beyond describing the “nature” of the of- prosecutor reading no different than the permitted fense as in KRS 532.055. here, from the citation that Appellant, 532.055(2)(a)(2) KRS allows the glass used a bat to break in the of a Commonwealth to introduce relevant evi business’s door. dence of prior nature of “[t]he offenses for Rejecting proposition establishing of

which he during was convicted” sentenc bright line rule as to the permissi- ing. This type Court has held that the of “general description” ble limits of a should may evidence during which be admitted be, pro- held that excessive and have persistent felony stage offender of a testimony attempts retry tracted bifurcated trial should serve establish prior crimes will not be allowed. See necessary elements for demonstrating (finding id. at 854-855 error where statutory requirements being per of prior permitted victim of a crime was felony sistent offender. Pace v. Common testify extensively length and at concern- wealth, (Ky.1982) 636 890 S.W.2d ing injuries her and the circumstances sur- (overruled grounds by on other Common Pace, crime); rounding the see also 636 Harrell, (Ky.1999)). wealth v. 3 349 S.W.3d (finding S.W.2d at 890 error when Com- routinely testimony

We noted Com- monwealth introduced extensive Truth in Sentencing “gruesome prior monwealth’s statute facts” about felonies overriding has the of purpose providing physical and also introduced irrelevant evi- during sentencing); with information relevant deliv- dence Hudson ‘kind, (6th ed.1990): purposes determining Dictionary, 2. For what "nature” Law means, announces, sort, order; Nature, type, general Robinson will look character.' "[w]e then, generic specific.” to the definition of 'nature' found in Black's is more than Id. (Ky. judgment. long final So as the informa- 1998) fair, (finding testimony gen- error elicit tion is limited to a accurate and when beyond convictions, of the reading description prior ed went eral nature of the dates, offense, comports and sentences and went into factual it KRS 532.055 and Here, warrants, etc., testimony go may by jury. obtained from be considered beyond the testimony merely provide gen- nature the conviction as served to Robinson)-, set forth in description but see Brooks v. eral the nature permitted 824-825 offense KRS 532.055(2)(a)(2). Robinson, (Ky.2003) (permitting admission of records See such as a at 855. complaint pertaining criminal to S.W.2d misdemeanor convictions and assertion, Contrary to the dissent’s parole during sentencing). officer bright not announce a line Hudson does overruling rule and we have no intention endorsement of Given this Court’s Indeed, of it. has part Court theory of an enlightened well-informed bright consistently rejected formulating a evaluating proper penalties, Mabe rule, line for the more opting instead of the rule announced flexibility workable (Ky.1994), Assembly’s and the General in Robinson, permissible in is that it is in which ensuring enlightened jury tent an general description to offer a of the nature 532.055, through KRS the Truth in Sen of the statute, prior conviction. tencing Boone v. (Ky.1989) (quoting 780 S.W.2d Nor, suggests, as the does Hud- dissent Reneer, Commonwealth v. 734 S.W.2d up prohibition of read- son offer blanket (Ky.1987)), it would seem both coun fact, all ing from or citations. warrants terproductive illogical that to hold descrip- very from the scant is clear recitation of facts from the offense is disal testimony in that offending tion of the in of describing general lowed nature clearly beyond that it instance is “was Here, the prior crime. the Common Hud- limitation set forth Robinson.” of the nature description

wealth’s of son, plainly at 110. Hudson in solely offense was limited to the rule announced Robinson defers citation, formation contained on the name here. There no error. and so shall we ly Appellant utilized a bat to commit breaking aspect burglary. of the We B. Narration of the Police Chase Vid- do not afoul believe such information runs eos. stringent of and limited even the most argument, next which is un- Appellant’s

interpretations keep prior of our intent to trial court should not preserved, is being during the convictions from retried police have allowed officers to narrate two penalty phase. during their trial testimo- played videos that, having of the cautionary ny As a note add substance videos —the mounted in admissibility captured of the informa- from cameras upholding the been case, highspeed pur- depicting tion contained on the citation their cruisers to flee. attempted not create a suit of as he we do rule contents by supplementing charging Appellant alleges a citation or other document are tapes at court with always during penalty phase. playing admissible video process rights his due may that such documents contain narrative We know must information, denied and thus his conviction misleading inaccurate or as were disagree. well as information inconsistent with the be reversed. We trial, testimony by At Fleming officer Michael KRE 602. KRE 701 limits testify. expert was called as a witness to as an mat- During testifying witness “(a) testimony, his video played showing [r]ationally percep- based ters on the “(b) pursuit witness,” he attempted [hjelpful tion of the to flee from being stopped. officers after understanding of testi- clear the witness’ In large part, Fleming’s testimony consist- mony or the of a fact in determination responses ed of narrative to the Common- Moreover, KRE re- issue.” 602 further questions, purpose wealth’s with the permissible opinion fines the scope lay describing images on the video from testimony, limiting it to matters which his perspective they happened. Addi- personal knowledge. the witness has tionally, Fleming questions answered con- Thus, reading requirements these two cerning chase, location of conjunction, that the narra- we determined symbols various which appeared on the tion of the it proper video because meant, cruiser’s in-car camera and what “comprised opinions and inferences that procedures the officer employing rationally officer’s] based on own [the were stop Appellant’s vehicle. perceptions personal had jury in knowledge” helpful and “was

Likewise, Bradley Sapp Officer testified images evaluating displayed on the in much However, the same manner. Mills, videotape.” 996 S.W.2d at 488. focus of Sapp’s testimony was from the perspective of the video obtained from his Additionally, we have allowed narrative cruiser’s camera events relevant provid from court testimony witnesses pursuit. The substance of his testimony commentary” “simultaneous of crime highlighted bumper incident, to bumper video, scene Milburn v. see Common which was not on the tape, video and fol- wealth, (Ky.1989), 788 257 S.W.2d question lowed a similar and for- answer pre-re- found whereas we have error in mat describing taking place the events on video corded narrative when such narra significant note, the video. is It howev- hearsay. tion contained See inadmissible er, every that statement by Fleming both Commonwealth, Fields v. 12 S.W.3d Sapp and response ques- was in direct to a Thus, (Ky.2000). the thread 280 common tion asked the Commonwealth and was uniting narrative-style our decisions on describing the actions they perceived testimony of audio and video is evidence them at the time of the chase. other, testimony, such like that must

Appellant comport with rules of points out that no the evidence. Kentucky case directly law addresses whether an Therefore, fulcrum matter the of the officer can narrate tapes. audible video turns, the upon which this issue is whether However, find that we this Court’s personal has testified from knowl- witness rulings concerning crime scene videos and edge and events rational observation of tapes guidance inaudible lend the issue. perceived and whether such information is

In short, Mills v. 996 helpful jury. S.W.2d to the does the (Ky.1999), we testimony comply addressed issue of with the rules evi- police whether a may proffer officer’s narrative testi- dence? While a nar- witness mony during playing of a crime scene testimony permissible rative within the video improper lay testimony. evidence, was of the we have We confines rules Mills, determined, or proper may “interpret” that not video held audio evidence, query testimony testimony such narrative was as such invades complied whether it to make province jury, job with KRE whose is trial, trial court committed at upon the evi- videos of fact based determinations error, cumu- as the videos were reversible See Gordon dence. (finding Because, error (Ky.1995) delay. undue S.W.2d lative and caused to offer testimo- noted, allowed witness was already when we believe as we have tape audio poor quality ny interpreting accompanying testimony the videos buy that was sub- drug of an undercover to the Commonwealth’s germane were inaudible, tes- simply rather than stantially and, thus, were pursuit prosecution of its recollection). as to his tifying overly prejudicial, nor cumulative neither not did and for reasons complained-of testi Turning to the at presentation videos object to spe no hand, has made mony trial, error under RCr palpable find no any particular portions protest as to cific 10.26. Sapp’s testi Fleming or Officer Officer Here, question de mony. videos playing both Appellant claims high-speed police of a picted substance nothing more than chase did videos the in-car cam chase, captured from dis evidence. We “pile duplicative on” to con reasonable completely It is eras. the lead Here, Sapp Officer agree. testimony not the officers’ clude that pursuit Appellant. high speed car in the discerning beneficial only from his cam Thus, images captured video, but was on the happening critical information detail highlight era Mills, 996 necessary. See in all likelihood charged. Like to the crimes pertinent Moreover, important at 488. from Officer wise, obtained the video interpret testimony did ly, the officers’ footage capturing car contained Gordon, Fleming’s at 180. the video. Cf. Sapp, and by Officer attempted in the maneuvers narrative While from uniquely other information available sequentially followed it sense pack the last car in the perspective tape, all statements were chronology of Further, during the in answer to chasing Appellant. in nature and were responsive car in Sapp’s Narrative time in was questions. of which period the Commonwealth’s necessarily interpretive car, is testimony Fleming’s is not video Appellant’s front of Here, testimony testimony per se. pursuit. only depicting one perception of the officers’ explicative was as to admis Determinations as occurring on the video

of events are a matter exclusion of evidence sion and during police them they perceived v. Com trial court discretion. Woodard of of further elucidation provided chase 63, monwealth, (Ky.2004). etc., 67 147 S.W.3d procedure, which police matters a trial review, not overturn Upon from vid we will readily identifiable were Thus, unless having re evidentiary determinations standing judge’s on its own. eo unreasonable, that the “arbitrary, and determined the record his decision was viewed testimo lay opinion principles.” proper by legal sound was or unsupported jury, we ny English, was beneficial 993 S.W.2d v. Commonwealth error. palpable find no (Ky.1999). Vid- of the Police Chase Admission

C. the KRE 403 balanc conducting Prejudi- or Not Cumulative eos Was afforded substan test, judges trial are cial. Brock Common tial discretion. See (Ky.1997). wealth, first time for the argues, next noted, relevant Here, were as videos chase in both playing that appeal, on judge, legal pre- and the trial In Johnson v. Common- proceedings. was his wealth, rogative, (Ky.2005), probative determined that their 549-550 outweighed any of cumula- prohibition value concerns we reexamined Callahan’s delay. determined, tive evidence or undue See KRE defining doubt reasonable 401; points KRE 403. Because the facts in that instance wherein under no specific pres- harm suffered from the attempted to indicate Commonwealth entation of the a not, error, videos—other than hollow doubt if reasonable argument asserting prejudice Appel- existed, since harmless. lant received the maximum sentence—and Johnson, The in record, nothing because we can find in the 548-549, jury in S.W.3d at indicated to the otherwise, or to indicate that trial colloquy voir dire that reasonable during

judge’s determination was an abuse dis- “beyond same thing doubt was not the cretion, arbitrary or unsupported sound doubt,” prosecu- shadow a legal principles, we palpable cannot find prove anything beyond did not tion where error none exists. end, To shadow a doubt. that we recognized, very “in the case an- Defining D. Reasonable Doubt. against defining prohibition nounced the Lastly, Appellant argues Com- ], held that [Callahan reasonable doubt we impermissibly monwealth defined reason- prosecutor’s allegedly improper state- during able doubt the jury. selection of most, ment, which, attempted to show As Appellant’s prior arguments, this not, doubt did not what reasonable is unpreserved issue and will be reviewed against amount to rule a violation ” standard, under the palpable error RCr Johnson, defining doubt.’ ‘reasonable Again, Appellant 10.26. alleges (emphasis original). in 184 S.W.3d at 549. conviction be should We reversed. dis- however, significantly, More Johnson agree. im- squarely alleged addressed whether dire, During voir the Commonwealth ad- attempts to permissible define reasonable dressed the the following manner: subject to error doubt could be harmless We prove beyond have to our case analysis. Appellant argues that such now reasonable get doubt. So order to However, error can be harmless. never conviction, prove have to each Johnson, pronouncement Court’s every element of every each and regard, clear: while we funda- charged beyond offense a reasonable in mentally upheld our decisions Now, doubt. you jurors would all as rejected the progeny, Callahan and its we agree to to hold us that burden and that defining notion that such error in rea- burden To only? prove make us our per prejudicial sonable doubt se case beyond a reasonable doubt not subject analysis. not to harmless error beyond all of a by shadow doubt or not a id. at if is “[E]ven See 550-551. one con- certainty? mathematical prosecu- by that the statement vinced error, proposition RCr 9.56 sets forth the in this that er- tor case constituted not applied should be instructed as to ror was harmless. We have issue, precise the definition of this reasonable doubt. harmless error on even Callahan, cases, affirm- capital Commonwealth v. 675 S.W.2d in murder each time 391, 393 (Ky.1984), ing this Court extended a and sentence of death.” conviction 550; prohibition defining this at see Sanders v. well-settled Id. also Common- wealth, points (Ky.1990); reasonable doubt to all in a trial’s 801 S.W.2d 671 Commonwealth, v. III. Caudill S.W.3d 635 CONCLUSION (Ky.2003); Howell reasons, for Accordingly, foregoing (Ky.2005). S.W.3d hereby affirm Appellant’s we conviction and sentence. Thus, despite Appellant’s contention that a violation of should not be Callahan VENTERS, J., sitting. All concurs. (and subject analysis harmless error CUNNINGHAM, J., only in concurs result overruled), Johnson should be are un- we SCHRODER, J., by opinion, separate with persuaded. offers no legitimate NOBLE, J., opinion. concurs joining that argument merely conclusion this by separate part in and dissents in part Cooper’s cites to Justice dissent for this C.J.; and opinion, MINTON However, a proposition. majority of ABRAMSON, J., joining opinion. Cooper’s Court considered Justice well- CUNNINGHAM, Opinion Justice argument reasoned at time and con- only. in result concurring cluded otherwise. We would be remiss very I concur Justice Scott’s well- freely ignore so doctrine deci- stare the concerns opinion, written but share contrary sis and reach here decision expressed in of Justice Noble. the dissent today. out, Hud- points As Scott neither Justice Turning to complained of statement bright line nor Robinson son establish hand, at it noted that Appellant’s must be can included rule as to what be describ- unpreserved. claim of error is Jus- Even previous “nature” of a conviction. dissent, Cooper, tice quick clear, however, make These cases preserved and, accordingly, prosecu- draw distinction between and there is a limit simply I do not pertained lightly. it al- tors should tread unpreserved error as describing burglary believe leged attempts defining reasonable entry using a baseball bat forced while Johnson, 184 at 555 doubt. See prejudicial. line to be crosses (“Unlike J., (Cooper, dissenting). the case offense, the considering burglary When judice, contemporane- sub not a there was certainly much more imagine a jury could objection prosecutor’s ous discussion entry menacing means of forced meaning of reasonable doubt a common baseball might make use of Sanders.”). Indeed, either Caudill or Any devia- comparatively innocuous. bat recently prosecutor’s held that a com- tion from Hudson and Robinson which “beyond ment that a reasonable doubt was here, error, if occurred may have all not equivalent beyond doubt” did harmless. palpable rise to error. Brooks v. Com- monwealth, (Ky.2007); J., SCHRODER, joins opinion. also Rice v. No. 2004- see NOBLE, concurring by Justice Opinion SC-1076-MR, (Ky. at *7 2006 WL dissenting part. in and in part 2006) Feb.23, (“Truthfully pointing out that a ‘shadow of doubt’ is different from the majority I with Respectfully, dissent ‘beyond a doubt’ is not an at- reasonable to read the appropriate that it was view Using to tempt define reasonable doubt. citation, “1993 of the which stated contents however, is, out examples, point to or what Fayette County. Subject third. burglary is.”). not, doubt, Thus, glass the is reasonable bat. Broke utilized a baseball in Lexington of Autosound palpable no here. the front door find error inflammatory in- range potential and took items of Used without several value. in Thus, fluence. it has been the law force to enter a business steal from and that it Kentucky years for the last ten is goes that This business.” statement far contents inappropriate to read the entire beyond previously what this Court has jury during a to of warrant or citation the acceptable listing prior held be when sentencing phase. the sentencing. in Specifi- convictions in truth cally, in Hudson it, explicitly saying majority the Without (K.y.1998), S.W.2d 106 a case which cites essentially overruling and is is Hudson Robinson v. henceforth. inviting this kind (Ky.1996), this as Court held follows: is that was read majority’s The view what “In convictions, addition reading the truthful, solely to the is and was limited dates, sentences, and supervisor read information on the citation. contained information regarding the factual circum- This, however, precisely what Hudson is stances of each conviction from war- this, a forbids. Based can witness on how rants or uniform citations. The amount of when he or she has read too much? guess information jury clearly heard was a majority previously The blurs what was limitation beyond the in set forth Robin- bright line rule.

sort,, therefore, and should not have been away from was drunk and ran admitted.” exactly That was the case a police. obviously risk to He Then, now, here. did noth- witness drivers, property. pedestrians, other ing more read than the entire warrants or However, underlying carry a offenses citations. years. jury maximum sentence five The Robinson,

In this Court that him noted decided to sentence to the maximum in purpose regard of truth under sentencing possible in sentence the PFO First (PFO) persistent felony enhancement, twenty years. offender It is certain- convic- tion simply ly arguable implied to inform jury violence convictions, using defendant door of prior had baseball bat knock in the business, may local general was, their business nature which so that or employed jurors at the could some determine whether the defendant others, very had least been known to the since persistent of a status felon. dire, in rule, it was not disclosed voir could have making this the Court balanced the potential jury. inflamed the This kind of unduly prejudicial detailing pre- nature of have been if the prejudice would avoided vious offenses information neces- burglary conviction and sentence for sary to obtain a PFO conviction. Since jury, all was read is all a PFO is a status which for the en- allows plain reading of Hudson allows. hancement of the sentence in a case that tried, just has been acutely the Court was Consequently, I would and re- reverse aware that how offenses occurred hearing for a sentencing mand new this necessary information to the de- did Hudson. Court they occurred, termination that had J., MINTON, C.J.; ABRAMSON, join in punish- those details could result opinion, concurring part ment aimed at those rather than offenses dissenting part. merely establishing The status. merely stating Court determined would

general nature of offenses suf- penalty

fice to allow the to fix the the appropriate penalty

within enhanced

Case Details

Case Name: Cuzick v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jan 22, 2009

Citation: 276 S.W.3d 260

Docket Number: 2007-SC-000466-MR

Court Abbreviation: Ky.