Opinion
NO. 2011-CA-000583-MR
02-22-2013
BARRY G. BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 10-CR-00141
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; NICKELL AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Barry G. Brown contends his convictions for possession of a firearm by a convicted felon and being a persistent felony offender (PFO) in the first degree should be reversed due to three errors committed by the Muhlenberg Circuit Court. Brown acknowledges that two of these errors are only subject to review under the palpable error standard articulated in Kentucky Rule of Criminal Procedure (RCr) 10.26: (1) the admission of certain evidence of Brown's behavior which he characterizes as irrelevant and unduly prejudicial; and (2) the conduct of a competency hearing during which the court merely received the report of the examining psychiatrist, rather than requiring that the psychiatrist appear and testify. Brown further contends the circuit court erred by overruling his motion for a directed verdict. None of these matters constitutes palpable or reversible error; therefore, we affirm.
I. Facts and procedure
Brown was arrested at the scene of the crime on July 9, 2010, for brandishing a gun and threatening three acquaintances. He was indicted on charges of first-degree burglary, receiving stolen property, first-degree wanton endangerment, being a felon in possession of a firearm, and first-degree PFO. The firearm possession and PFO charges were severed from the other charges and tried first.
Prior to trial, Brown's attorney raised the possibility that his client was not competent to stand trial, and the circuit court ordered that Brown be evaluated at the Kentucky Correctional Psychiatric Center (KCPC). The examining psychiatrist found Brown competent to stand trial, and his report was entered into the record at a hearing held on December 6, 2010. At the hearing, his attorney raised no objection to entry of the report and did not request that the psychiatrist be required to testify. Brown was declared competent, and the parties proceeded to trial.
At the guilt phase of trial, witnesses testified that Brown had sold a boat to an acquaintance, Daniel Roberts, for $300. Roberts had paid only $150 upon receipt of the boat and agreed to pay the balance in the next few weeks. Before he was scheduled to pay the balance in full, he paid two installments of $20 each. Roberts testified that on July 29, 2010, he and two friends, Steve Casebier and Sheila Johnson, had been preparing for a barbecue at his home when Brown approached wielding a gun. According to Roberts, Brown entered the home and demanded immediate payment of the remaining $110; otherwise, he would shoot Roberts. The other guests at the barbecue provided substantially similar testimony, and they both testified that Brown had threatened to shoot them, as well, if they interfered. The witnesses could not agree on precisely how much alcohol they had each consumed in the afternoon preceding this incident.
The Commonwealth's witnesses also testified that by the time police arrived, Brown had already abandoned his threats. The arresting officer, Police Chief Wade Griggs, informed the jury that he saw Brown walk away from the Roberts residence with a black object in his waistband, though Griggs could not identify the object. Griggs apprehended Brown and placed him under arrest; he then found a gun on the ground approximately fifteen feet away, in the path Brown had just taken. Griggs also expressed his belief that Roberts, Johnson, and Casebier were all intoxicated.
The circuit clerk provided the following testimony: Brown had been convicted of a felony offense, first-degree wanton endangerment, for an incident which had occurred on April 5, 1998. He was accused of firing a shotgun at one Marty Level and Level's home. Brown received a sentence of three years' imprisonment, which was probated. Therefore, the clerk stated, Brown had been convicted of a felony as of the date he was accused of wielding a gun at Daniel Roberts' home, July 29, 2010.
The jury found Brown guilty of possession of a firearm by a felon. Following the sentencing phase of trial, the jury fixed his punishment at five years. The jury also found Brown was a first-degree persistent felony offender, and the sentence was enhanced to ten years. This appeal followed.
II. Arguments on appeal
On appeal, Brown first argues that the circuit court erroneously permitted extraneous, prejudicial evidence to be admitted. The evidence to which he now objects was the testimony of Daniels, Casebier, and Johnson that, in addition to physically possessing a firearm, Brown had also aimed it at them and threatened to shoot if they did not do as he commanded. Brown also believes it was unnecessary and improper for the county clerk to testify as to the factual basis of Brown's 1998 wanton endangerment conviction, which also involved the use of a firearm. He concedes that no objection to this evidence was raised at trial, and so the alleged error may be reviewed only under RCr 10.26.
Brown allegedly threatened to shoot Casebier and Johnson if they did not leave the premises, and threatened to shoot Roberts if he did not give Brown the money he owed.
The second error Brown contends the circuit court committed occurred at the competency hearing. Rather than merely entering the KCPC competency report into the record, Brown argues, the circuit court should have required the examining psychiatrist to appear and testify. He asserts both statutory and due process principles as the authority for his position that the circuit court should have conducted additional inquiries into Brown's competence to stand trial sua sponte. He acknowledges that this matter was never brought to the circuit court's attention and concedes, as a result, that RCr 10.26 provides the appropriate standard of review.
Finally, Brown claims the circuit court erroneously denied his motion for a directed verdict at the close of the Commonwealth's case. More specifically, Brown argues the testimony of Johnson, Casebier, and Roberts was so unreliable due to their consumption of alcohol that it should have been granted no weight whatsoever. He argues, furthermore, that since Police Chief Griggs could not affirmatively testify that he saw Brown in possession of a firearm, there was no credible evidence that Brown did in fact possess it. The Commonwealth contends Brown did not preserve this argument because his trial attorney did not state a sufficiently specific basis for the motion.
Brown did not put on evidence of his own, so the close of the Commonwealth's case was the close of all evidence presented.
We will address each argument in turn.
III. Standard of review
As Brown acknowledges, the first two arguments he presents on appeal were not preserved. Matters not properly preserved in a criminal trial are subject to review as stated in RCr 10.26:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Manifest injustice, in turn, is defined as, "A direct, obvious, and observable error in a trial court . . . ." Manifest injustice, Black's Law Dictionary (9th ed. 2009).
We turn to Brown's first two arguments with these standards in mind.
IV. Discussion
a. Prior bad acts
Brown contends that portions of the testimony of the three witnesses who claimed to have seen him wield a gun - Johnson, Casebier, and Roberts - were irrelevant or unnecessarily prejudicial.
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Kentucky Rule of Evidence (KRE) 401. Furthermore, "[r]elevancy is established by any showing of probativeness, however slight." Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999).
Witness testimony about the actions Brown took while in possession of a firearm was relevant to the issue of whether he did, in fact, possess a gun. Brown's trial strategy was to discredit the testimony of these three witnesses by raising the possibility that they were too intoxicated to accurately perceive the events that transpired. By providing the details of Brown's behavior and the circumstances in which he wielded the gun, the Commonwealth sought to establish the credibility of the witnesses and the coherence and reliability of their testimony. See Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) ("Witness credibility is always at issue and relevant evidence which affects credibility should not be excluded."). We do not agree that this evidence was irrelevant.
Likewise, we do not agree that this evidence was unduly prejudicial in violation of KRE 403, or impermissible evidence of another crime or bad act used to impugn Brown's character as prohibited by KRE 404(b). As we have stated before:
[T]he defendant seeking to exclude evidence must establish undue prejudice since all relevant evidence is prejudicial. That is to say, evidence tending to disprove a defendant's rendition of the facts necessarily harms his case. For that reason, KRE 403 does not bar all prejudicial evidence; only evidence that is unfairly prejudicial is excludable.Rolls v. Commonwealth, 2010-CA-001577-MR, 2012 WL 246383 (Ky. App. 2012) (citing KRE 401; Gell v. Town of Aulander, 252 F.R.D. 297, 306 (E.D.N.C.2008) ("All relevant evidence is 'prejudicial'[.]"); Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky.2000) (explaining "the real issue is whether [Appellant] was unduly prejudiced, i.e., whether the prejudice to him was unnecessary and unreasonable")). Brown has presented us with no reason to conclude the witnesses' descriptions of his actions were unduly prejudicial. Furthermore, since his possession of the gun occurred simultaneously to the threats he leveled at these three witnesses, the two behaviors are "inextricably intertwined," and therefore expressly admissible according to KRE 404(b)(2).
We are aware of the prohibition against citing to unpublished cases unless "there is no published opinion that would adequately address the issue before the court." CR 76.28(4)(c). Our research did not reveal a statement explaining "undue prejudice" which better serves the needs of this case than the unpublished opinion of Rolls v. Commonwealth.
We turn now to the testimony of the Muhlenberg County Clerk regarding Brown's 1998 conviction for wanton endangerment. Brown protests that it was unnecessary for the Commonwealth to elicit testimony regarding to the name of the offense or the factual circumstances underlying the conviction; rather, he urges, the parties could simply have stipulated to Brown's status as a previously convicted felon. He believes the testimony was therefore unduly prejudicial.
Brown is correct that when a defendant charged with being a felon in possession of a firearm offers to stipulate or admit to a prior felony conviction so as to avoid the risk of undue prejudice, it is an abuse of discretion for the trial court to refuse that request. Anderson v. Commonwealth, 281 S.W.3d 761, 766 (Ky. 2009). But the Commonwealth correctly notes that where, as here, the defendant does not offer to stipulate or admit to the previous felony conviction, the prosecution retains its "burden of proving every element of the case beyond a reasonable doubt." Greene v. Commonwealth, 197 S.W.3d 76, 80 (Ky. 2006) (citing KRS 500.070). Conviction under KRS 527.040, the statute prohibiting a felon from possessing a firearm, requires a showing that the defendant had a felony conviction at the time he possessed the gun in question. The Commonwealth was permitted to present evidence to that effect, and it did so in nearly as brief a manner as possible. There was no palpable error.
b. Competency hearing
Brown next urges that we find the circuit court's failure to require KCPC's examining psychiatrist to testify at his competency hearing was palpable error. If reasonable grounds are raised "to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him . . . or to participate rationally in his . . . defense," the trial judge must appoint a mental health professional to evaluate him in accordance with KRS 504.100. RCr 8.06. Following evaluation, the psychologist or psychiatrist must create a report to be submitted to the trial court, and the court must then conduct a hearing to determine whether the defendant is competent to stand trial. KRS 504.100.
However, so long as the evidence of a defendant's possible incompetence does not rise to "substantial evidence" of incompetence, the statutory right to a competency hearing may be waived entirely. Padgett v. Commonwealth, 312 S.W.3d 336, 347-48 (Ky. 2010). Although the examining psychiatrist must "appear at any hearing on defendant's mental condition," that requirement can be waived, as well. KRS 504.080(4).
In considering the possibility that Brown was incompetent to stand trial, the circuit court did conduct a very brief hearing in which it admitted the report of the examining psychiatrist, but at which the psychiatrist did not appear. At that hearing, Brown's attorney stated that he had no objection to entry of the report and did not request that the psychiatrist be ordered to testify. The failure to invoke the statutory right at this crucial stage of Brown's competency determination constitutes a waiver. It was not palpable error for the circuit court to proceed without testimony of the KCPC psychiatrist.
Brown also argues on appeal that counsel's waiver was ineffective because the record lacks evidence that "Brown himself made a knowing, voluntary[,] and intelligent waiver of his statutory right to have [the psychiatrist] testify and be subject to cross-examination." (Appellant's brief, 20). He has not cited any authority in support of the argument that such evidence is required, and so we will not consider it. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
But Brown argues that the evidence of his incompetence was substantial and therefore implicated his constitutional right to a full evidentiary hearing to assess his competence. We acknowledge that a hearing required as a matter of due process rather than statutory entitlement cannot be waived. Padgett, 312 S.W.3d at 347-48.
"The [Fourteenth Amendment] due-process right to a fair trial is violated by a court's failure to hold a proper competency hearing where there is substantial evidence that a defendant is incompetent." Id., at 347 (citations omitted). Evidence of a defendant's incompetence "includes [his] irrational behavior, his demeanor at trial, and any prior medical opinion on competence." Id., (citation and internal quotation marks omitted).
Here, there was not substantial evidence that Brown was incompetent. Rather, the KCPC psychiatrist found as follows:
The defendant is able to respond to orally presented items from the Competency to Stand Trial Assessment Instrument in such a way as to indicate that he has a fair understanding of the legal process. He knows the roles of principals in a court (judge, prosecutor, defense attorney, etc.), and he understands what is meant by guilty or not guilty pleas, as well as what is meant by a plea agreement.Additionally, our review of the record reveals that Brown was attentive during trial. He reacted to witness testimony and passed notes to his attorney. In camera, he stated under oath that he understood his right to testify in his own defense before the jury but that he wished not to invoke it. He behaved appropriately during the guilt phase of his trial. The circuit judge did have to admonish Brown to stop talking once during testimony of a probation and parole officer at the sentencing phase; however, Brown was talking during this testimony in an attempt to spur his attorney to object to evidence he thought inadmissible. This reveals an understanding of courtroom procedure. Whatever Brown's mental illnesses may have been, there was not substantial evidence before the circuit court that he "lack[ed] the capacity to appreciate the nature and consequences of the proceedings against him . . . or to participate rationally in his . . . defense[.]" RCr 8.06.
Though the defendant indicates that he has no memory of the event that led to his arrest, and denies any intent to harm anyone, it is the examiner's opinion that he is competent to participate rationally in his own defense.
c. Motion for directed verdict
The definitive standards which govern a motion for a directed verdict can be found in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.(citations omitted).
But any request for entry of a directed verdict must include specific factual and legal support; all arguments not specifically raised in the motion are not properly preserved. Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005) (citations omitted). "A motion for a directed verdict shall state the specific grounds therefor." CR 50.01. In this case, Brown's attorney stated he did not believe the Commonwealth had met its burden of proof, but declined to identify specific facts or evidence in support of that position. Merely stating that the opposing party has not met its burden of proof is not meaningfully more specific than a bare request for a directed verdict, and is therefore inadequate to properly preserve the matter for appellate review. Bratcher v. Commonwealth, 2004-CA- 002154-MR (Ky. App. 2006); see also Pate v Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004). The question of Brown's entitlement to a directed verdict will therefore be reviewed according to the palpable error standard. Id.
Our research revealed no published authority which stated this precise rule. CR 76.28(4)(c).
--------
There was ample evidence to justify the circuit court's denial of Brown's motion for a directed verdict. As Brown notes, there are two elements to the offense of possession of a firearm by a felon which apply to this case: (1) possession of a firearm; and (2) a prior felony conviction. KRS 527.040.
In support of the charge, three witnesses testified that they had seen Brown wield a pistol. There was some dispute about whether and how much alcohol each of these witnesses had been drinking immediately prior to the incident, but the important parts of their testimony on this point were nearly identical. Furthermore, the arresting police officer found a pistol on the ground near Brown and along the path he had just taken. The circuit clerk testified that Brown had a previous felony conviction. This was "sufficient to induce a reasonable juror to believe beyond a reasonable doubt" that Brown was guilty. Benham, 816 S.W.2d at 187.
We affirm the circuit court's denial of Brown's motion for a directed verdict.
V. Conclusion
None of Brown's grounds of appeal constitute palpable error, and his convictions are therefore affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky