Norton v. CommonwealthNorton v. Commonwealth
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This case presents two issues for our consideration: first, whether the mention of sentencing information during voir dire and the guilVinnocence phase of trial requires reversal in this case, and second, whether a trial court may order a sentence for contempt to run consecutively to a felony charge.
Appellant, Rick Norton, was charged with second-degree burglary for breaking a basement window and entering the home of Judy Sehill. Upon hearing the sound of crunching glass and someone walking around in the basement, Schill’s son sought to foil the burglar. When Appellant became aware that someone was in the home, he took off running. Schill’s two sons chased Appellant, caught him, and held him down until police arrived and arrested him. At trial, Appellant admitted breaking the window, but denied that he ever entered the dwelling. The jury convicted Appellant of second-degree burglary and of being a persistent felony offender (PFO) in the first degree. He was sentenced to ten years’ imprisonment on the burglary count, enhanced to twenty years by the PFO conviction. The court then sentenced Appellant to ninety (90) days’ incarceration after holding him in contempt for disruptive behavior at trial. The court ordered the contempt sentence to be run consecutively to the twenty-year burglary and PFO sentence. Appellant now appeals as a matter of right. Ky. Const. § 110(2)(b). For the reasons to be set forth below, we affirm Appellant’s conviction and sentence.
Appellant first argues the trial court committed reversible error in permitting the prosecutor to mention sentencing information during the guilVinnocence phase of the trial, and in failing to grant a mistrial upon Appellant’s request. Because we have reconsidered our holding in Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990), we find Appellant’s contention to be without merit.
The prosecutor first mentioned sentencing issues during voir dire when he questioned the prospective jurors on their ability to follow the law and consider any potential punishment in the authorized penalty range. Appellant objected several minutes later, rather than by contemporaneous objection as required by RCr 9.22. Nevertheless, we will address the merits of this argument in order to revisit and clarify the state of the law regarding the admissibility of sentencing information during voir dire.
Appellant claims our holding in
Carter v. Commonwealth,
782 S.W.2d at 601, absolutely precluded the prosecutor from mentioning anything pertaining to sentencing or penalty range at any point prior to the sentencing phase of the trial. Indeed, in
Carter,
we held that “telling the jury sentencing information during the guilt/innocence phase of the trial violated the statutory process of a bifurcated trial as set forth in the new truth-in-sentencing statute,
However, we later clarified the holding of Carter in the case of Shields v. Commonwealth, Ky., 812 S.W.2d 152 (1991). In Shields, we reiterated that generally, jurors should not be exposed to “purely ‘sentencing information’ ” during the guilt/innocence phase of the trial. Id. at 158. We held, however, that the law “does not absolutely preclude their being given some information of that type incidental to a proper voir dire examination.” Id. This is so because, “[i]n order to be qualified to sit as a juror in a criminal case, a member of the venire must be able to consider any permissible punishment. If he cannot, then he properly may be challenged for cause.” Id. Here the prosecutor raised the issue of sentencing briefly during voir dire, for exactly the reasons of which we approved in Shields.
Appellant also argues that the prosecutor violated the Carter prohibition when he discussed the sentencing issue during his closing argument. The prosecutor’s statement must be viewed in its proper context. During voir dire, defense counsel informed the jury that his client was guilty only of attempted burglary, not second-degree burglary. He repeatedly asked jurors if they would “max out” the defendant because he had admitted to attempting to burglarize the Schills’ home. During closing arguments, defense counsel explained that Appellant had admitted all of the elements of second-degree burglary except for entering, and, thus, he could only be convicted of attempted burglary.
In response, the prosecutor contended during his closing argument that Appellant admitted every element short of entering the dwelling because he hoped to receive the substantially lesser penalty that he would receive if he were convicted of attempted burglary instead of burglary. The defense objected and moved for a mistrial, which the trial court denied. We find the prosecutor’s argument to be entirely appropriate. The defendant here put the question of penalty at issue during the guilt/innocence phase of trial when he admitted all of the elements of the lesser offense and asked the jury not to “max” him out. Consequently, he invited the prosecutor to address his motive for so testifying and incriminating himself. It is entirely proper for the parties to comment on motive, tactics, evidence, and falsity of a defense. See Tamme v. Commonwealth, Ky., 973 S.W.2d 18, 38 (1998) (citing Bowling v. Commonwealth, Ky., 873 S.W.2d 175, 178-79 (1993), and Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 411-12 (1987)).
We remain adamant that sentencing issues must not be raised prior to the penalty phase of trial as a means to imper-missibly influence the jury to convict based on the desired penalty rather than on the elements of each given offense. However, there are legitimate and appropriate reasons to inform a venire of the range of penalties that it may be called upon to impose as well as rational and logical reasons to discuss the potential penalties in the context of a defendant’s possible motivations during closing argument. The hard line laid out in Carter is unworkable in that its application unduly restricts the discussion of information that needs to be imparted during the jury selection process. Further, it is unnecessary in light of the protections provided by the Kentucky Rules of Evidence which allow for the introduction of evidence that is relevant and not unduly prejudicial. See KRE Chapter 4. We therefore overrule Carter v. Commonwealth insofar as it holds that sentencing information is always inadmissible during the guili/innocence phase of the trial.
The next issue for our consideration concerns the trial court’s ability to order a defendant’s contempt sentence to run consecutively to a felony sentence. Following the jury’s verdict of guilt on the burglary
Appellant argues the trial court imper-missibly ordered the contempt conviction to run consecutively to his burglary sentence. Appellant’s argument is as follows. Contempt is classified as a misdemeanor.
See Young v. Knight,
Ky., 329 S.W.2d 195, 199 (1959) (citing
Gordon v. Commonwealth,
141 Ky. 461, 133 S.W. 206 (1911), and
Melton v. Commonwealth,
160 Ky. 642, 170 S.W. 37 (1914)). A sentence for a misdemeanor conviction is classified as a definite sentence.
The Commonwealth does not dispute Appellant’s above analysis, but rather, argues an exception to the rule of
When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.
(Emphasis added.) The Commonwealth argues this statute is dispositive of the case at hand because Appellant was still “awaiting trial” on the PFO charges, and was “awaiting” the penalty phase of trial at the time he was held in contempt. According to the Commonwealth’s interpretation of
Naturally, the Appellant disagrees. He argues the term “awaiting trial” means “awaiting the commencement of trial,” and thus, once the trial has begun, the defendant is no longer “awaiting” trial, but instead is participating in the trial, and is therefore not subject to mandatory consecutive sentencing as set forth in
The power of the courts to punish for contempt is an inherent power of the judiciary.
Arnett v. Meade,
Ky., 462 S.W.2d 940, 947 (1971). The general rule is that any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.
Id.
at 946.
The three branches of government are co-ordinate and yet each, within the administration of its own affairs, is supreme. The grant of the judicial power to the courts carries with it, as a necessary incident, the right to make that power effective in the administration of justice under the Constitution.
Although we have stated that the legislature may put reasonable restrictions upon constitutional functions of the courts, provided that such restrictions do not defeat or materially impair the exercise of those functions,
Arnett,
462 S.W.2d at 946, the restrictions imposed by the statute at issue in this case do not fall into that category. If we were to permit the
Lastly, Appellant argues the trial court erred when it deemed the ninety-day sentence for contempt to have been satisfied by deducting ninety days from the credit which Appellant would otherwise receive for time spent incarcerated prior to sentencing, thus giving Appellant 194 days toward his maximum term of imprisonment rather than 284.
See
As a final matter, we would note that, although we denied Appellant’s “Motion for Leave to File Supplemental Citation of
For the reasons set forth above, Appellant’s conviction and sentences are hereby affirmed.
All concur.
Notes
. For example, the Appellant here was clearly not a stranger to the criminal justice system, and when the trial judge first held Appellant in contempt, Appellant responded with contempt of his own: “Well, whatever. What you gonna do, give me 30 days on top of 10 years? Stick it . . . you ain’t said nothing dude. What can you do? You can’t jack no more than 30 [expletive deleted] years....”