Paulley v. Commonwealth

PAULLEY, Appellant, Steven

v. Kentucky,

COMMONWEALTH

Appellee. (a/k/a

Henny Henry L. Gunn Gunn), Appellant,

L. Kentucky, Appellee. 2009-SC-000024-MR,

Nos.

2009-SC-000033-MR. Kentucky.

Supreme Court

Oct.

Opinion of the Justice Court Chief MINTON.

I. INTRODUCTION. Rocky Brown was shot and killed while prevent attempting to hold door entry Adolphus forced into Stone’s home. Henny A circuit court convicted (a/k/a Gunn) of, Henry and Steven offenses, among murdering other Brown. Paulley separately appeal- Both Gunn and right.1 ed to this Court as matter of many operative Because the facts and are the for appeals, issues same both appeals we have elected to resolve both in opinion. this combined Because the trial improperly grant request court failed to cause, juror for vacate to strike we must Parley’s and Gunn’s convictions re- mand cases to the trial court for these proceedings further with consistent opinion.

II. AND FACTUAL PROCEDURAL HISTORY. children, people, including Nine three present were at the home Stone shared girlfriend. with his Someone knocked on the door and identified himself as B.J. knocking pounding The became kick- ing, put weight against and Brown his A door to hold closed. shot fired through fatally the door struck and wound- Brown, ed who leaned his back and had Rhorer, Emily Department Holt of Pub- against po- shoulder the door. When the Durham, II, Advocacy, Roy Alyette lic As- arrived, they in get through lice could not Advocate, Department sistant Public the front door because Brown was still Frankfort, KY, Advocacy, Public Counsel holding the doorknob. Appellants. for investigation, In the course of their Conway, Jack Attorney General of Ken- police ongoing learned of Stone’s feud with Lenz, tucky, Susan Roncarti At- Ward, Assistant Eventually, Paulley, Eric Ward. General, torney Attorney Gunn, Office of Gener- Taylor charged and Eric were in al, Division, Frankfort, Appellate Criminal relation to Brown’s death. Two weeks KY, trial, Taylor agreed for Appellee. Counsel before Ward and 110(2)(b). Ky. § Const. any testify for the Commonwealth. Ward bias because any she did know pleaded guilty complicity-based charges the officers involved in these cases. surrounding agreed death Brown’s dire, in Later on voir prospective juror with on a the Commonwealth sentence of # 220248 stated she had a bur- been years’ imprisonment four those times, glary victim several both as a child charges. Taylor agree- entered an into Nonetheless, and as an adult. she insisted ment with the which Commonwealth in he that she could be fair and impartial 5th right waived his Amendment to refuse these and murder cases. testify for a exchange reduction Finally dire, in voir prospective juror Nonetheless, severity charges. of his # 220248 stated that her son had been the Taylor permitted to sit at the defense victim of robbery involving a firearm. during table Gunn and Paulley’s joint trial. asked, When prospective admit- acquitted Taylor The jury charges; of all ted that she was not sure she could listen Gunn and were convicted of all to the evidence and not allow her previous charges. Ultimately, in accordance experience ability to cloud her to consider recommendations, jury’s the verdicts and these cases. Defense counsel if the asked the trial court sentenced life im- Gunn to prospective juror’s prior experience would prisonment and to Paulley sentenced twen- ability interfere with her to be fair and ty imprisonment.2 years’ impartial, which woman responded to the that she not was sure.

III. ANALYSIS. Over the objection, Commonwealth’s de- numerous, Paulley Both Gunn and raise fense later pro- counsel moved to strike often-overlapping issues. We will discuss spective juror for #220248 cause. The to juror the failure strike a for cause issue trial it ques- court said have would liked to dispositive. first because is willWe then tion prospective juror this further de- but briefly only discuss those that are issues nied the motion to for strike cause because potentially dispositive or necessary are for juror court believed the not ex- had guidance upon remand.3 pressed anything prevent that her could from a serving juror. as Defense counsel A. Failure to Strike Juror for Cause. then was forced to use strike peremptory a dire, During prospective juror voir to remove # prospective juror # stated that she was a civilian who previously training had served as a in Kentucky Pro Rules Criminal (RCr) 9.36(1) for Indianapolis juror structor Police De cedure provides a partment. She also stated she had should be struck for cause there is “[w]hen enforcement, many in ju relatives law none of ... ground reasonable to believe that Kentucky. whom lived She disclaimed ror cannot render a fair and impartial jury twenty-year 2. After concurrently recommended a which to be with were served Paulley sentence, for sentence on the murder convic- imprisonment the life total for a tion, Paulley agreed and the Commonwealth imprisonment. sentence of life convictions, to on sentences the other all of concurrently which were to be served carefully 3. We have considered the briefs conviction, the murder for a total sentence plethora are aware of of issues contained twenty years' imprisonment. Similarly, after Any specifically in them. issue not discussed recommended a of life im- sentence moot, opinion is to be without deemed prisonment for on Gunn the murder convic- merit, unlikely on or to recur remand. tion, agreed and the to convictions, remaining on sentences all of ” requirement A trial court definite our defendants evidence.... verdict on the jurors they set of other discretion to de- forth names generally given “broad a have struck until October 2009— prospective juror whether would termine year Paulley’s None- over a after Gunn and tri- cause....”4 should be excused theless, not mean a als.8 It would be unfair for us to hold discretion does “that Gunn and to a standard that did juror not to strike a judge’s trial decision by an not at the time of their trials. Gunn beyond appellate review exist for cause is erroneous, objection made their Ordinarily, timely an discre- court.”5 juror prospective a motion to for cause to # 220248.9 tion-abusing grant failure to time, at er- the state of the law cause results in reversible Under strike for required. more was So recently nothing have made clear our we shall ror.6 But we preserved. complain “in on deem this requirement properly order issue For peremptory all cases tried after of our appeal finality that he denied Gabbard, however, fail- judge’s a trial erroneous decision reaffirm challenge strike, complain that “in on grant appeal ure to a for-cause defen- order he identify any peremptory challenge by denied a dant must his strike sheet have failure jurors judge’s grant he would struck.”7 trial erroneous additional strike, for-cause the defendant must iden- Gunn and neither admit identi- tify any ju- on his strike sheet additional jurors he any fied additional would have rors he would struck.” forced to struck if he had been use # peremptory strike on 220248. The procedural Having dealt with the a argues such failure issue, aspects may analyze this we now Paulley’s fatal to Gunn’s claims. is and it properly qualified on the merits. A disagree. We juror must be which former impartial, Paulley’s joint Supreme trial occurred States Jus Gunn and United Court Chief not tice September Hughes in 2008. We did make Evans described as Charles Commonwealth, merely 4. those three a fleet- Mabe citations contains defense, 1994). ing (Ky. recitation that the which was 670 peremptory to on chal- allowed collaborate lenges, juror peremptory challenge used a on 297 Gabbard v. S.W.3d # 220248. The other two do relate citations (Ky.2009). 853 juror to to the motion strike for cause. objection at an en But the for cause made ("The question Id. then is at 854 whether during bench conference which the masse grant to the the trial court’s erroneous failure attorneys during did not face the camera and is a for-cause strike reversible error. This ongoing an which there is loud and unrelated ordinarily, Court such has ruled an error conversation, background it is so sometimes right affects a a substantial of defendant and certainty difficult to discern with what is be- presumed prejudicial.”). is to be ing we whom. So deem this said preserved. issue Id. 10.Gabbard, at 854. the Both October 8. Gabbard was rendered on agree, Commonwealth and the defendants See id. at 844. reasons, jury the strike are whatever sheets not, not in the record before us. So we could case, holding 9. The this is strictly apply Commonwealth contends issue our preserved only Paulley. denominating regarding as to The Common- which other Gabbard portions juror(s) wealth cites to three of the video have a a defendant would exercised purportedly challenge upon, de- peremptory record where Gunn's counsel even if we do so. slated he had no strikes for cause. But one of sired to comprising appropri- “mental attitude of an robbery. armed When asked direct- ...”11 In to ate indifference order deter- ly whether she fair could be and impartial, juror appropriate degree mine if a has the juror the stated she was not sure. The whether, test after impartiality, is “[t]he juror’s hesitancy highlighted all evidence, having pro- heard all of the more because stands marked contrast juror spective can conform views to his quick her of any disclaimer stem- bias requirements of law and render a fair ming from her law enforcement ties and Any and impartial verdict.”12 doubts experience. ability juror about the of a fair to be Unfortunately, deeply this issue was not impartial should be construed in favor of a explored by follow-up questions. The last defendant.13 word on this crucial subject juror’s was the # juror The fact that prospective honest-seeming expression of doubt about personal had and familial ties to law en- her ability to be fair impartial. From automatically disquali- forcement does not record, this scant the Commonwealth asks fy sitting juror her from as case.14 us to assume a lack of while bias Gunn and Similarly, juror fact that prospective us ask to assume bias. # As stated had been the victim a similar previously, however, must automatically crime did her we afford a disqualify from service.15 So been had those criminal defendant the benefit of doubt only allegedly disqualifying remarks made as it pertains juror’s to a ability to be #220248, prospective juror we would impartial. all, After perhaps nothing routinely affirmed the trial court’s strikes at more the heart of having fun- decision to strike refuse to her for cause. damentally fair trial seating than does the Yet, an appropriately jury. impartial

But more troubling far is the fact that rule in favor of the juror prospective # 220248 unable required would impartial to find any stemming disclaim being bias from who fact, categorize refused so In mother of a victim. herself. crime In she words, other might taking stated she not be able out into account all the put to of circumstances, her the fact her a mind son was victim facts and nothing there is Wood, 123, 11. competency juror United States v. 299 U.S. 145- of the in favor of the defen 46, 177, (1936) ("Impar- dant.”). 57 S.Ct. 81 L.Ed. 78 tiality not a conception. is technical It is a state of mind. of For the ascertainment this Stopher 14. See v. S.W.3d 57 indifference, appropriate mental attitude of 787, (Ky.2001) (finding 797 no error in failure lays particular the Constitution down no tests juror to strike cause for whose father was procedure any is not chained to ancient police juror officer when “noted he did formula.”). and artificial any preference police not have for officers family and that his the law connection to Mabe, 884 S.W.2d at 671. 12. profession enforcement would in manner no ability affect his to decide the case based on Fugate v. 993 S.W.2d presented.”); Bowling the evidence v. Com- 1999) (Ky. ("Composition jury 939 of the is monwealth, 942 299 S.W.2d always vital to the in a criminal defendant (“Being a law enforcement officer insuffi- is prosecution and about unfairness is doubt to service.”). jury cient to excuse for from cause favor.”); be in his resolved Calvert Com monwealth, (Ky.App. (“the 1986) ("While Bowling, at mere recognize difficulty person fact empaneling totally especially a that a has been the victim of a jury, unbiased case, this, pro- similar is a in a such in a crime insufficient to mandate case as criminal cause.”). spective juror trial court should resolve all as to the be for doubts excused If the is evidence from which we could defini- the Commonwealth. in the record juror to juror truly sufficient to induce a reasonable tively impar- this was conclude beyond reasonable believe a doubt tial. a ver- guilty, the defendant is directed to anything In concrete the absence pur- given. dict should be For could have set aside the show this motion, pose ruling the trial held as the mother of a crime feelings she that the for court must assume evidence victim, forced to conclude “there is we are true, but reserv- the Commonwealth to ... ju- believe ground reasonable jury as the credi- ing questions to cannot render fair and ror [#220248] weight given such bility and evidence, ...”16 impartial verdict on the testimony. failure to The trial court’s erroneous review, the appellate On test of di- ju- grant prospective the motion strike is, rected verdict if under the evidence “deprived the de- ror #220248 cause whole, clearly it as a would be unreason- and, right” substantial ulti- of a fendants] guilt, then only able for to find mately, get led Gunn “not entitled to the defendant is a directed [they get.”17 trial entitled to So were] acquittal.19 verdict of vacating Gunn’s and the error necessitates Paulley’s only convictions. We shall next Burglary. briefly possi- that have a discuss matters bility recurring on remand or would be and Paulley Both Gunn contend charge to at one dispositive as least they were entitled to directed verdicts be Paulley. against Gunn and/or cause there was no evidence that either Stone’s home. evidence entered The B. No Entitlement to Directed Verdict. that, most, at showed front door they Both Gunn and contend opened slightly Stone’s residence when to directed verdicts.18 We were entitled Gunn. So could kicked Gunn’s foot disagree. the door have crossed threshold when question entry The ajar. of whether 1. Standard of Review. slight support as as this is sufficient to charge rarely been has addressed ruling The familiar standard for Court, especially adoption since the on a for directed verdict is as fol motion Kentucky Penal Code lows: verdict, case, is pertains person On for directed the trial As it to this a motion if he guilty degree court draw all fair and of in the first must reasonable intent a ... from the evidence in favor of “with the to commit crime inferences 9.36(1). Though passing 18. he he was 16. RCr mentions that robbery to a verdict as the entitled directed to 336, 243 17. Shane v. S.W.3d charge, Gunn offers no substantive ("Not (Ky.2008). 341 See id. at 343 also (nor specifically pertaining charge that venire, removing a biased from the Paulley). will not wheth- So we discuss does thereby forcing per- a a defendant forfeit Appellant er directed either was entitled to a strike, emptory makes defendant the take charges. robbery verdict on the duty prevents the court him from of the right getting jury he the had a choose. right Benham, This violates a substantial accorded v. 816 history, great weight legal in our and can 186, (Ky.1991). 187 error.”). never harmless be

723 knowingly unlawfully coming conclusion, enters or remains in of to that the Court building, effecting entry cited, and when in or approval, various treatises and building in the or in the immediate while scholarly generally agreed works that therefrom, flight participant he or another breaking may by “[a]n actual ... re- ... explosives in the crime armed with [i]s moving breaking or a pane glass, of deadly weapon....”20 question or a The hand, inserting the or even a finger....”26 raised Gunn and is whether a case, In a similar which is also over one slight entry here, crossing a foot — old, years hundred predecessor our Court threshold of a residence when a door is held that a defendant could guilty not be slightly ajar kicked a suffi- —constitutes breaking into railroad car without actual- entry. cient We hold that it does. ly entering the car.27 In the course of Other courts concluded that even a conclusion, arriving at the Court slight entry example, is sufficient.21 For car, opined entry that “an into the however Supreme Court of Tennessee has held slight, such putting as through hand “[ejntry indispensable is an element in opening with the prop- intent to steal but, burglary[;] prove the crime of en- etc., therefrom, erty, entry would be an try, necessary is not to show the meaning of the statute....”28 body defendant’s whole made an entrance adoption Code, After the of the Penal Instead, into the house.”22 as our coun- have, apparently, only had one occasion to held, terpart burglarious Maine has “[a] address the viability continued of the slight entry accomplished by is the intrusion into rule; building any part entry and that body, an occasion occurred arm, hand, .”23 finger[,] thirty years or a foot... In ago. Stamps v. Common- wealth, a defendant was convicted third-

Although parties, not cited our degree burglary upon based his having precedent in general accord with this penetrated into the “air pockets of the “slight entry” beginning rule. At the concrete blocks” at the rear of a store century, the last predecessor our Court having “penetrate[ed] without into the loosening had to decide whether a window store” itself.29 We cited Price and Gaddie strip actually opening the win- —but general for the proposition slight that a dow—was a “breaking” sufficient to consti- entry was sufficient but held that the de- breaking tute into a warehouse.24 The Stamps fendant in ultimately guilty was not of bur- Court concluded that no break- glary ing penetrated only occurred since there was no actual because he had entry into the In the pockets warehouse.25 course air in the exterior concrete blocks (KIRS) 468, Kentucky Ky. Revised Statutes 24. Gaddie v. 78 511.020(l)(a). (1904). S.W. 162 Id. at 78 S.W. at 164. Walters, People Cal.App.2d (1967) ("The Cal.Rptr. slightest entry 461-72, 26. Id. at S.W. 78 at 163. burgla- is sufficient to constitute the crime of intent."). ry, if it be with felonious Commonwealth, 716, Ky. 27. Price v. 129 112 (1908). S.W. 855 Crow, 753, (Tenn. 22. State v. 517 S.W.2d 753 1974). 718, 28. Id. at 112 S.W. at 855. (Me. Commonwealth, Liberty, 23. v. Stamps State 280 A.2d 808 29. v. 602 1971). (Ky.1980). endangerment the interior of the seven counts of wanton penetrated and not upon people based seven who were building.30 the homes into which the defendant fired.34 So, precedent with and with consistent Gunn, Similarly to the defendant in West courts, we reaffirm viewpoint of other argued only charged he should have been entry is sufficient to slight that even a endangerment with three counts of wanton charge burglary, assuming, of of support only since he fired three shots. After course, all supports the other evidence precedent analyzing wanton en- offense, requisite burglary elements of a statute, 508.060, dangerment KRS ap- are at issue in these none of which Appeals of concluded “the shootings Court peals.31 endangered persons which seven in total Drawing all reasonable inferences in fa- charged as separate could seven of- vor of the a reasonable endangerment.”35 of wanton fenses juror could have concluded that Gunn’s agree with the We conclusions and anal- foot crossed the threshold of Stone’s home ysis of the of Appeals. Court We have front when Gunn kicked Stone’s door. So Kentucky’s endanger- held that wanton the trial court did not err when it refused designed protect ment statute is to “each Paulley’s grant to Gunn’s and motions for every person coming from each act burglary charges.32 on the directed verdict within the It definition of statute. designed punish not a statute a continu- Endangerment. 3. Wanton course of ous conduct.”36 So Gunn was was convicted of nine counts properly charged endanger- with wanton of count endangerment wanton for —one ment person as each who was inside person present each in Stone’s home when Stone’s home when Gunn fired into it. through Gunn shot Stone’s front door. refusing The trial court did not err in support Gunn contends his conduct did not grant Gunn a directed verdict on the nine a finding guilt on nine counts of wanton endangerment. counts of wanton endangerment.33 disagree. We 4. Murder. Appeals previously The Court of has rejected argument. In v. they West Com- Both Gunn and contend monwealth, charged a defendant was with each were entitled to a directed verdict on Id. at 173. could have concluded that 30. guilty burglary complicity theory under liability. (2010) ("Any Burglary § 31. See 12A C.J.S. entry, complete partial, kind of or will suffice convicted purposes All of one count of of a statute. that is endangerment appear wanton and does not entry premises, entry needed is inside the specifically challenge that conviction on part premises. inside inner of the some Nevertheless, Moreover, appeal. we must vacate that slightest entry is sufficient to conviction, endangerment along wanton with burglary, the crime of if it constitute be with convictions, Thus, Paulley's all of other because of necessary felonious intent. it is not our conclusion the trial court should have ex- person enter the structure his or her juror # cused 220248 for cause. body, entry any part entire and the least sufficient, body of the accused is such as hand, arm, (Ky.App.2004). penetration by finger, 34. 161 S.W.3d his or her foot.") (internal omitted). or footnotes Id. at 337. he, Although apparently, personal- did not ly open, Hennemeyer kick Stone's door there was sufficient presented (Ky.1979). evidence from which a reasonable their charge, arguments it, the murder but door when Gunn fired through meaning precisely are not framed in the same man- intent may kill reasonably have been argument ner. So we will discuss each inferred.39 There was sufficient evidence separately. for a jury to have found guilty Gunn intentional murder. a. Gunn.

Gunn contends he was entitled to Paulley. b. charge a directed verdict on the murder Paulley’s directed argument verdict in- because the Commonwealth’s evidence was volves a somewhat confusing amalgam of ” “scant and unreliable.... In other what he to be believes insufficient evi- words, Gunn’s not argument dence, improper by remarks the Common- present any failed to in Commonwealth wealth, and improper jury instructions. him; rather, criminating against evidence it, As we understand Paulley contends argument present his is that the evidence there was insufficient evidence to convict ed the Commonwealth was unreliable him of intentional murder such that or should not be believed. trial court by giving erred the jury a com- argument appears Gunn’s improp bination instruction it could have used to erly to characterize the role of a in court Paulley guilty find of either intentional or on a ruling directed verdict motion. When wanton murder.40 Compounding the er- verdict, ruling on a motion for directed ror, view, Paulley’s was the Common- court “must that the assume evidence for wealth arguing that not all of the Commonwealth is true.37 We do its agree members had to Paulley was weigh credibility of witnesses be guilty of intentional murder in order for jury.38 cause that task is reserved for the them Paulley to convict of murder. We Instead, only a court must determine if reject Paulley’s all of arguments. there is sufficient evidence from which a juror reasonable have found a could defen First, there was sufficient evi guilty. dant presented dence juror reasonable hand, Paulley convict of intentional In the case at murder. dispute there is no The presented Commonwealth evidence presented evidence showing showing Gunn and his cohorts— both fired the shot that including killed Brown Gunn —went to and admitted to his Stone’s home to others shooting revenge involvement Brown. There rob or exact Stone on Stone ongoing also was evidence Gunn knew that at least furtherance of Stone’s feud with person one was on the other side of the Eric Ward. and Gunn went onto Beriham, murder, 816 S.W.2d at 187. evidence to convict of wanton disagree. A reasonable could con- Id. although (acting cluded that Gunn in concert Paulley) knew Stone’s home was occu- See, Sutiles, e.g., Commonwealth v. pied, might precise not have known the (“It long has been occupants. Firing location of those a shot held this Court that intent can be inferred through the door could have been construed surrounding from act itself and the cir- "manifesting cumstances.’’). as conduct extreme indifference “creatfing] grave to human life” and risk of make no there seems to person....” death KRS another was not sufficient evidence to convict him of 507.020(l)(b). wanton murder. the extent that either To Paulley argues Gunn or there was insufficient unanimously agree on jury that a need not Paulley handed Gunn porch. front Stone’s provided all theo- specific theory guilt, Gunn used to shoot shotgun the loaded jury sup- available to the are guilt ries of door, that knowing Stone’s through Brown So the ported by sufficient evidence.42 side of the was on the other someone else by did not misstate the law prosecutor for a was sufficient door. The evidence although jurors that all twelve had opining Paulley guilty of juror to find reasonable Paulley and committed to believe Gunn trial court did intentional murder. So the murder, not to take the they did have verdict as to by denying a directed not err reach that con- “path” same “road” or by instructing the murder or intentional clusion.43 Paulley guilty of inten- jury it could find tional murder. Irregularities. Jury Verdict argue he Paulley Since does jury initially returned ver The on a entitled to a directed verdict was all Paulley guilty and Gunn finding dicts and there was charge of wanton murder burglary charges prin homicide and —both support a conviction sufficient evidence cipal every lesser-included offense. murder, it was not inherent for intentional homicide, Specifically, as to the the trial court to instruct ly improper for murder, Paulley guilty found were each theories.41 jury on both degree, in the first and man manslaughter reject Paulley’s argu we

Finally, degree; Paulley in the second slaughter upon for relief based the Common of facilitation additionally guilty ment found murder, manslaughter wealth’s statements to the effect facilitation to agree have to all on whether to man jurors degree, did not the first and facilitation degree. or intentional in the second As to Paulley guilty slaughter wanton each recently re-emphasized burglary, Gunn and were murder. We Moreover, commentary Benjamin person....” 266 S.W.3d ("when (Ky.2008) the evidence will KRS 507.020 makes it clear "KRS beyond support either mental state a reason- 507.020(l)(a) designates as murder a homi- doubt, able a combination murder instruction person of a cide that results from conduct certainly proper.”). objective conscious is to cause anoth- whose prosecutor’s appears er's death.” So Beaumont v. contrary was erroneous. statement to the (“Although 7 of the Section parties dispute whether this issue was The Kentucky requires a unanimous Constitution properly preserved review. But we need jury twelve in all verdict reached entitles not determine whether that statement cases, necessary criminal is not [i]t First, the either to relief for two reasons. verdict, jury, in order to find a [unanimous] reasons; being remanded for other case is single in a should concur view of transac- the Commonwealth’s statements Rather, trust tion disclosed the evidence. carefully to follow on remand will be tailored proof [theory] beyond a of either where Second, Paulley reply the law. states his the same of- reasonable doubt constitutes fense, inquiry prosecutor’s misleading inter- turns on whether the ”[w]hile brief evidence.”) pretations supported by the are requisite proof of intent is im- (internal quotation citations and marks omit- understanding portant to an of what knowl- ted). edge jury when it deliber- was armed with ated, error on which Mr. it is not the complain about the and Gunn each added). Similarly, requests (emphasis relief.” stating prosecutor that intentional argu- reply he “is not Gunn states in his brief shoot, only required proof murder of intent to ing upon prosecutorial for a new trial based murder, not intent to kill. For intentional closing argument.” improper or misconduct 507.020(l)(a) requires act KRS someone to with “intent to cause the death of another

727 found in the since guilty Paulley of both first Gunn and would not eligi- be degree attempted burglary and the first ble to be principal retried on the offenses degree. questioned When the trial of murder if we robbery accept and their court, foreperson the stated that the jury argument that jury’s finding guilt of guilty had found the defendants of all the lesser-included offenses entitled them counts because the Commonwealth had to a directed verdict on the principal of- closing stated in defendants were fenses. guilty they of the lesser if offenses were We have already held there was suffi- guilty of the principal offenses. Over ob- cient evidence to submit the principal bur- jection, the trial court denied motions for glary charges and murder jury. to the directed the greater verdicts on offenses Moreover, jury’s highly unusual ver- Instead, and motions for mistrial. after an dicts acquittal cannot be an deemed recess, overnight trial court directed —im- plied or any principal actual —of charges jury to return to deliberations and since jury also expressly found clarify Paulley under which or burglary homicide and Gunn guilty principal of the theories it convict Paulley intended to and offenses. deliberations, So the acquittal Gunn.44 After doctrine of implied pro- renewed jury finding Paulley returned verdicts vides and no relief to Gunn or Paulley either offenses, Gunn guilty principal of the mur- since there were no acquittals.

der robbery degree. and in the first precedent Our is clear that “[a] appeal, Paulley On Gunn and contend may charged defendant and be convict they were entitled to a directed verdict on of major ed both a offense and lesser- greater offenses or mistrial. Obvi- arising included out offense of the same ously, unique highly factual scenario is jury’s finding facts.”45 So the initial unlikely to recur on remand. And we are guilt on both and principal lesser-included highly skeptical a mistrial was war- offenses precedent was erroneous. But However, ranted. need not definitively jury’s counsels improper us view the determine whether and Gunn were findings guilt on lesser-included offenses entitled to such a drastic curative measure being surplusage, especially as mere since already being because their cases are re- inquired jury the trial court of the about manded to the trial court on other Nevertheless, permitted jury its intent and to correct grounds. we shall briefly improper discuss the verdict its error.46 So the initial jury’s directed parties disagree jury 44.The as to whether the cause neither Gunn nor has demon- deliberating when it was released for the any prejudice strated concrete from the lack night prior day the next time when sequestration, and their convictions are — again the trial court ordered it deliberate to being vacated and remanded on other clarify Seques- the verdicts it had rendered. grounds. mandatory jury tration is while a is deliberat- ing guilt charge, felony on a RCr 9.66. But Wine, v. S.W.2d McGinnis 439 mandatory sequestration is not between the (Ky.1998). See, guilt penalty phases e.g., of a trial. Bowling v. Howard, See, e.g., United 507 F.2d States (“RCr require 9.66 does not (8th Cir.1974) (finding jury’s 561-63 jurors guilt sequestered be between the guilt offenses to verdicts of on lesser-included penalty phases Sequestration the trial. surplusage refusing be to order that de- required only felony after case has been only lesser-included fendant be sentenced on verdict.”). submitted to a for its We offenses); principal offenses instead sequestration need not resolve whether McGinnis, (finding jury's at 439 required highly peculiar under these facts be- joinder to trial would ing prior Gunn or not entitle verdicts do And, antagonistic unduly prejudicial.”47 action the trial relief, the curative nor does jury’s defenses, to correct the including casting took in order defendants court alone, other, standing errors. are each blame on invari- unfairly prejudicial and do not not Sep- Refusing to Grant in No Error C. Actually, separate trials.48 ably mandate Trials. arate conflict- may fact that defendants have the Paulley Gunn contend Both and “or question of the events in ing versions by ordering them to court erred the trial in they participated to which the extent co-defendant along with together, tried be [them], non, for, rather than vel is a reason mostly on arguments Their focus Taylor. lying, If one it is against, joint a trial. is having Taylor, unfairness of purported truth to be determined if all easier for the with the already struck deal who had And required together.”49 to be tried are trial, being the time of at that a trial court it be borne mind must and at the defense table sit permitted ruling discretion” has “considerable to collabo being opportunity afforded upon a severance motion.50 peremptory upon matters as rate such was, specious argument Paulley’s reject We Gunn’s Taylor But strikes. words, by against him “inexplicably acquitted” there was no evidence been, appears possibility essentially, there to be no jury. So that he must have and trial Taylor again will stand with by association or because he guilty found Paulley on remand. In other and This is by was framed his co-defendants. words, any involving purported issues attempted variation on his merely a clever Paulley suffered as a prejudice Gunn rejected argument he was previously Taylor are being jointly tried result have entitled to a directed verdict. We Instead, on our focus must be moot. already there was sufficient evidence held by trying erred whether the trial court charges jury, to the to submit i.e., whether Paulley together, and Gunn through to sift up on re they may again together be tried what it believed and evidence to determine mand. The and circum- rejected. what it facts against underlying charges stances by

The main made same; were the both Gunn is, essentially, and Gunn and, into account all the facts and taking to each of them joint prejudicial trial was cases, of these we conclude circumstances they antagonistic defenses. had because not abuse its discretion the trial court did not entitled to “A criminal defendant is tried by ordering Gunn and positive there show- severance unless other, finding guilty attempt to cast blame on each improper not on lesser-in- fendants required.”); surplusage to be for which Ware Com- cluded offenses severance is monwealth, opining (Ky.1976) barred and that ask- retrial was not S.W.2d 177 537 ing jury again ("neither to return deliberate in order antagonistic nor the fact defenses "may better proper verdict have been the against one defendant that the evidence for or course...."). amounts, itself, incriminates the other prejudice.”). unfair Humphrey v. 836 S.W.2d 47. (Ky.1992). Ware, at See, e.g., Davis v. ("Even Humphrey, 836 S.W.2d at 868. if the de- shooter, together.51 the trial court ruled the state- ment inadmissible. Paulley’s D. Exclusion of Statement. parties All agree seem to the state- The final issue we must discuss is precise ment —whatever its content would by Gunn alone. Gunn contends the raised hearsay. been—would have been by excluding hearsay erred trial court hearsay admissible, And is not unless it grounds purportedly a statement made fits an exception within hearsay Paulley that Ward fired the fatal We shot. rule.52 trial disagree with the that the argues Gunn main two to exceptions the court erred. hearsay rule. persuasive. Neither is Megan acquaintance was an of Sanders First, Gunn argues that the statement and, others, Paulley time along spent with should been deemed under admissible park shortly with in a after Brown holding the of Mississippi53 Chambers v. by was killed. When called as a witness We have pertinent aspects summarized the the re- began Sanders to of Chambers as follows: night her of late version the events on the Chambers, In person, another Mc- early of question. During portions the Donald, who not charged the testimony, the Sanders’s offense, had a signed sworn confession requested a bench conference at the which having to committed the murder. He it that Commonwealth stated believed also had made unsworn statements to testify shortly Sanders would that others in being which he admitted the had told Sanders that Ward had fired the killer. The defendant was permitted to shot killed that Brown. The Common- call a McDonald as witness to intro- wealth stated that such statement was sworn, the duce written confession. hearsay; inadmissible Gunn’s counsel stat- However, committing McDonald denied ed that the statement should be admitted confession, murder the and recanted the against as a trial statement interest. The offering a plausible explanation for hav- court the ruled Commonwealth was not ing originally signed it. Under Missis- required introduce any statements in its evidence, sippi’s “voucher” rule of the own case that it did not wish to introduce. defendant was from thereaf- prohibited The trial court then stated it believed McDonald, ter own wit- hearsay impeaching statement would be if his inadmissible ness, by by either cross-examination or sought defense counsel introduce it on of prior use his unsworn cross-examination. When Gunn later statements. hearsay sought question Paulley’s Mississippi’s permit about rule Sanders did not inconsistent, alleged statement about Ward but having prior been McDonald’s un- remand, course, See, parties may e.g., 51.On of Walker again separate ("A ask trial court for trials. fundamental holding appeals Our in these should be hearsay rule in the law of evidence is that as a construed mandate that Gunn and Paul- However, evidence is inadmissible evidence. remand; ley jointly upon must be tried hearsay may if evidence be admissible by after decision must made trial court excep- one of well meets our established for, any arguments or consideration made tions.'') (internal omitted). quotation marks Gunn, against, joint Paulley, trial Instead, only holding our Commonwealth. 53. 410 U.S. 93 S.Ct. 35 L.Ed.2d neither nor is entitled to (1973). already having relief virtue of tried been together. party use another’s state- sworn, used for sub- “[f]or to be statements them, express language not contain against and did ment purposes, stantive hearsay [ie., for statements general exception an of the rule KRE 801A] Thus, the defen- interest. penal use against understanding indicate that such can recan- not rebut McDonald’s could dant opponents. only party occur between Co- and was of his sworn confession tation prosecution in a are defendants criminal presenting essentially prevented from purposes as the party treated same charges against his best defense issue, at rule.”57 So the statement circum- held under those him. It was co-defendant, being statement of rights where constitutional stances not fall within the ambit KRE does affecting directly the ascertainment 801A. hearsay rule implicated, are guilt mechanistically to applied may not be IV. CONCLUSION. justice.54 the ends defeat reasons, foregoing For the Steven Paul- distinguishable is Plainly, Chambers Henny ley’s and Gunn’s convictions are case at from the hand. Chambers vacated; and their are cases remanded in a de- with a situation which concerned trial court for consistent proceedings impeach his own witness fendant could opinion. with a de- inability deprived and whether himself—a right of a to defend fendant ABRAMSON, NOBLE, sitting. Ah and in the case at hand. present concern not SCOTT, JJ., VENTERS, J., concur. at issue important, the statement Equally concurs, dissents, in in part, part, by and self-incriminating; Paul- in Chambers separate opinion in which in the statement at issue ley’s alleged SCHRODER, JJ., CUNNINGHAM and present directly incriminated Ward ease join. indirectly only incriminated and VENTERS, J., concurring, part, most, merely placing Paulley at the by, at dissenting, part: shooting. not be- of the So we do scene that our applies, nor lieve Chambers I agree otherwise with the sound While deeming hearsay rules inad- longstanding expressed by rationale the Chief Justice in are, case, being “applied in this missible majority opinion, part company I must jus- mechanistically to defeat the ends of my colleagues burglary regarding tice.” Appellants Paulley and convictions. been granted should have a directed ver- in favor Gunn’s second dismissing burglary charges dict be- admissibility is even less of the statement’s presented, cause the evidence when viewed meritorious. Gunn contends favorably most was admissible as the statement statement recently prove of a failed to the essential element of party-opponent.56 We explaining entry into the rejected argument, an identical residence. rule, hearsay though even the declarant is

54. Dillard (citations witness, quotation marks available as a if the statement is omitted). against party’s ... party [t]he offered and is statement....”). own Chambers, 410 U.S. S.Ct. 1038. at 57.Walker, (emphasis 288 S.W.3d at 740 (KRE) Kentucky Evidence 56. See Rules of omitted). ("A internal footnote 801A(b)(l) by excluded statement is not quarrel longstanding I with our attempt gain entry. have no If that constitutes rule of burglary, and well-settled law that the ele- then what constitutes an at- entry burglary ment of contained our tempted burglary? Stepping onto the by proof slight statutes is satisfied of a porch? Knocking on the door? entry building by perpetrator’s into a Given the evil deeds of Gunn and Paul- head, hand, foot, body part, or other or the ley multiple and the sentences imposed by extension of same an instrument with upon them for crimes properly that were he which or she intends to commit a crime. supported by evidence, sufficient one requires proof beyond But conviction still might be tempted regard this issue as entry, reasonable doubt of some however having no consequences. real The burgla- slight. slight entry Evidence of is far ry totally sentences are subsumed slight entry. different from evidence of imposed life sentences for the murder of Here, there no entry. evidence of Rocky But majority’s Brown. holding only slight There is an inference of entry. that this evidence is support sufficient to majority opinion: As stated in the “The burglary conviction will govern henceforth most, that, evidence showed at the front burglary when a conviction might- matters opened slightly door of Stone’s residence ily. We must not forget that this was a

when it was kicked Gunn. So Gunn’s capital murder case in which the foot could have crossed the threshold charge was an essential aggravating factor ajar.” when the door was (Emphasis add- for the imposition a death penalty. This ed.) entirety, In its the evidence estab- holding will also revisit us with the most door; lished that Gunn knocked distasteful consequences when scant it, it, opened when no one he kicked twice slight inference of entry converts hard according to some witnesses and two or knock on a Felony door into a Persistent three according times to another. When (PFO) twenty-plus Offender sentence of the door still failed to open, Gunn fired the man, years; or when we see a young who through fatal shots the door and left the should have been convicted for harassment arrived, porch. police When the the door or attempted burglary, become a felon be- was still locked with the victim leaned cause he too pounded hard on a door be- against it. It completely sepa- had never going fore giving up and home. most, jamb. rated from the door At above, For the set forth I reason would Gunn’s kicking portion flexed the lower I reverse convictions. re- enough door to allow witnesses to see concur, dissent, spectfully part, and light through. shine No one saw a foot or part, majority opinion. with the any part body, of Gunn’s nor even his shoe any or instrument cross the threshold.

That his foot “could have” so may done SCHRODER, JJ., CUNNINGHAM and cause, probable amount to but it falls far join. proof beyond short of a reasonable doubt. case, clearly

Under facts of this it was beyond

unreasonable for a to believe any part reasonable doubt that Gunn or body slightly

of his even entered the build-

ing.

There was no doubt whatsoever

Gunn kicked the in an door unsuccessful

Case Details

Case Name: Paulley v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Oct 21, 2010

Citation: 323 S.W.3d 715

Docket Number: 2009-SC-000024-MR, 2009-SC-000033-MR

Court Abbreviation: Ky.