Opinion
NO. 2015-CA-001246-MR
05-19-2017
MARK E. BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
ACTION NO. 14-CR-00067 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. JONES, JUDGE: Mark E. Brown appeals from a Fayette Circuit Court judgment imposing a total sentence of fifteen years after he was convicted by a jury of being a convicted felon in possession of a firearm and a persistent felony offender in the first degree. He requests palpable error review of his allegation that his due process rights were violated when the nature of the prior felony supporting the possession charge was disclosed to the jury.
I. Background
Brown was indicted on the following charges: being a convicted felon in possession of a firearm, felony receiving stolen property, tampering with physical evidence, possession of drug paraphernalia, and being a persistent felony offender in the first degree. The charge of being a convicted felon in possession of a firearm was tried first.
The first item of evidence introduced by the Commonwealth was a certified document showing that Brown was previously convicted of a felony. The jury was not permitted to see the document, but the Commonwealth's attorney described its contents. The jury learned that Brown was convicted of sexual abuse in the first degree in Fayette Circuit Court on June 18, 1999, and received a sentence of one year.
The other evidence presented at trial consisted primarily of the testimony of three witnesses who had observed Brown with a shotgun. At around 11:00 p.m., Brown entered a Shell service station in Lexington and asked the cashier, Keith Handy, to call him a taxi. When it arrived, Brown entered the taxi but as it was pulling away he asked the driver to stop. Brown got out of the cab, pulled a shotgun from a bush, and placed it on the back floorboard of the taxi. The driver, Derek Clements, was angry and told Brown to leave the car. After Brown left, Clements called the police.
Meanwhile, Handy heard the commotion outside and walked over to the door to see what was happening. He observed Brown about twenty to twenty-five feet away from him, holding a shotgun. He immediately shut the doors of the gas station and called 911. He observed Brown walking across the street towards the University of Kentucky hospital. When he was asked if Brown was still carrying the shotgun when he went across the street, he testified, "Yeah, from where I could see, yes. I didn't - I kind of got away from the windows." The police arrived shortly thereafter.
Sergeant Matt Greathouse of the Lexington Police Department was nearby when the 911 call went out. Handy gave him a description of Brown and his clothing and explained what had occurred. Handy also told Greathouse that the man with the shotgun had gone into the breezeway between the Lexington Clinic buildings on the campus of the University of Kentucky. Greathouse observed a person matching the description given by Handy, holding a shotgun at "Port Arms" position. He and Officer Brad Hawkins, who had been flagged down by the cab driver, and another officer approached Brown, who placed the shotgun under some bushes. Brown complied when the officers told him to show his hands and walk towards them. Sergeant Greathouse found a 12 gauge shotgun with 100 rounds of shells, along with a Walmart sack and black backpack in the bushes. He photographed the position of the shotgun before removing it.
At trial, Handy identified Brown as the man he had seen with the shotgun. He also identified a photograph of the person he had seen that night and agreed that it was a fair and accurate depiction of the clothing Brown had been wearing, camouflage pants and a white shirt. He also identified a picture of a 12 gauge shotgun that he believed was the same weapon, stating: "I will never forget that image of him standing there with that shotgun." He testified on cross-examination that he had never participated in any formal identification procedures after he told the police what he had seen.
The taxi driver also positively identified Brown as the man he had seen in possession of the shotgun. On cross-examination, he testified that the police never asked him for any written or signed statements, nor did they set up an identification procedure such as a lineup or show up. He also acknowledged that a year and a half had elapsed between the incident and the trial.
Sergeant Greathouse positively identified Brown as the man he saw in possession of the shotgun. On cross-examination, Greathouse testified that he did not have the shotgun tested for fingerprints and acknowledged that he was the only officer who saw Brown with the shotgun while the other officers were arriving at the scene. He also testified that he had been probably 100 to 150 feet away from Brown when he saw him with the gun. He acknowledged that he did not use any identification procedures such as a photographic lineup or a show up.
The defense did not offer any evidence at trial. The jury convicted Brown of being a convicted felon in possession of a firearm and being a persistent felony offender in the first degree. The other charges were dismissed upon motion by the Commonwealth. This appeal followed.
II. Standard of Review
Brown argues that the disclosure to the jury that he had been previously convicted of sexual abuse was so prejudicial that it rendered his trial fundamentally unfair. He concedes that the error is unpreserved and requests palpable error review. Kentucky Rules of Criminal Procedure (RCr) 10.26 permits unpreserved error to be reviewed if it affected "the substantial rights" of a defendant and resulted in "manifest injustice." To rise to the level of palpable error, there must be a "defect in the proceeding" which is "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
III. Analysis
Kentucky Revised Statutes (KRS) 527.040(1) provides that a "person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted[.]" A defendant who is charged with being a felon in possession of a firearm may stipulate or admit to having been previously convicted of a felony and thus prevent the Commonwealth from introducing evidence of the prior felony. Hall v. Commonwealth, 468 S.W.3d 814, 825 (Ky. 2015) (citing Anderson v. Commonwealth, 281 S.W.3d 761 (Ky. 2009)).
Brown argues that the jury did not need to learn the precise nature of his prior crime because such evidence was not necessary to convict him of being a felon in possession of a firearm. He contends that the jury simply needed to know that he had a prior felony conviction and that the nature of the conviction was completely irrelevant. Once the members of the jury learned of the sexual abuse conviction, he argues, they could no longer rationally consider whether he actually possessed the shotgun.
Although the admission of the evidence regarding the nature of Brown's prior conviction was prejudicial, an unpreserved error requires reversal only "'if a manifest injustice has resulted from the error,' which means there 'is [a] probability of a different result or [the] error [is] so fundamental as to threaten a defendant's entitlement to due process of law.'" Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)).
Although Brown has highlighted a variety of perceived flaws or weaknesses in the Commonwealth's evidence, such as the failure of the police to test the eyewitnesses by means of a lineup or show up, there was overwhelming evidence in the form of eyewitness testimony from the cashier, Handy, the taxi driver, Clements, and the police officer, Sergeant Greathouse, that Brown possessed the shotgun. His previous conviction for sexual abuse did not involve the use of a firearm and would not make his commission of the crime of possession of a gun more likely. There was no reasonable probability that the disclosure affected the jury's factual determination that Brown possessed the firearm, and consequently it did not rise to the level of palpable error.
IV. Conclusion
The final judgment of the Fayette Circuit Court is consequently affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky