Opinion
NO. 2017-CA-001718-MR
06-14-2019
PHILLIP LEONARD FORTNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 16-CR-00237 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. MAZE, JUDGE: Phillip Leonard Fortner appeals from a judgment of conviction by the Boyd Circuit Court following a jury trial. He argues that the trial court erred in denying his requested instructions on lesser-included offenses and his motion to suppress an eyewitness identification of him. We find no error or abuse of discretion in these matters. Fortner also raises an unpreserved error regarding the Commonwealth's use of impermissible hearsay during his cross-examination. We conclude that the issue does not rise to the level of palpable error. Hence, we affirm.
I. Facts and Procedural History
On October 24, 2016, a Boyd County grand jury returned an indictment charging Fortner with first-degree burglary, first-degree unlawful imprisonment, and impersonating a police officer. The Commonwealth alleged that, on November 11, 2015, Fortner contacted Chris Smith, Shannon McGee and Page Forney to burglarize what they believed to be a drug house. Fortner and McGee posed as police officers, while Forney remained in the car as the driver and Smith served as the lookout.
However, the house was not owned by a drug dealer, as the group believed, but was occupied by Tonya Sublett and her family. Fortner and McGee knocked on the door, identified themselves as police, and then forced their way into the house when Sublett answered. They secured her hands with zip ties and demanded to know where the drugs were. When Sublett told them that there were no drugs, they proceeded to ransack the house.
After several minutes, Fortner and McGee realized that there were no drugs or money. Smith yelled into the house that someone was approaching the car as well. After cutting Sublett loose, they then left the house. Fortner fled into the nearby hills, while McGee and Forney left in the car with Smith. After a short police chase, McGee and Forney fled on foot and Smith took the car. The police later apprehended Smith at a gas station. He later identified Fortner, McGee and Forney as the other individuals involved in the burglary. Fortner was eventually arrested in Huntington, West Virginia on August 26, 2016.
At Fortner's trial, Smith testified that Fortner had arranged and planned the crime. The Commonwealth introduced Fortner's cell phone, which contained text messages regarding the burglary. Shortly after the crime, Sublett was not able to identify Fortner from a photo pack. But later, after Fortner's arrest, she identified Fortner from a news report. At trial, Sublett identified Fortner at trial as a participant in the burglary. Fortner's ex-wife testified that Fortner told her that he was involved in the burglary.
Testifying on his own behalf, Fortner denied any involvement in the crime. He admitted that he owned the cell phone containing the text messages but claimed that it had been stolen before the burglary. Fortner also admitted telling his ex-wife that he was involved in the burglary but stated that he lied in order to impress her.
At the conclusion of trial, the jury acquitted Fortner on the charge of first-degree unlawful imprisonment but convicted him on the charge of impersonating a police officer and on the lesser-included charge of second-degree burglary. The jury fixed his sentence at a total of twelve years' imprisonment, which the trial court imposed. Fortner now appeals from this judgment. Additional facts will be set forth below as necessary.
II. Denial of instructions for lesser-included offenses.
Fortner first argues that the trial court erred in denying his request for an instruction on the lesser-included offenses of criminal trespass. A trial court's decision on whether to give a particular instruction is reviewed for abuse of discretion. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). "A trial court is required to instruct the jury on every theory of the case that is reasonably deducible from the evidence." Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (citing Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000)). An instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser-included offense. Roberts v. Commonwealth, 410 S.W.3d 606, 610 (Ky. 2013). In addition, lesser-included offenses are also covered under KRS 505.020(2).
Kentucky Revised Statutes.
Fortner requested instructions on first, second, and third-degree criminal trespass. First-degree criminal trespass, KRS 511.060, differs from second-degree burglary, KRS 511.030, only to the extent that the burglary statute requires proof that the defendant entered or remained in a dwelling "with the intent to commit a crime." Second-degree criminal trespass requires proof that the defendant knowingly entered or unlawfully remained in a building or upon premises to which notice against trespass is given. KRS 511.070. And third-degree criminal trespass merely requires proof that the defendant unlawfully entered or remained on premises. KRS 511.080.
In the current case, there was no evidence which would have warranted an instruction on second or third-degree criminal trespass. Moreover, the Commonwealth presented evidence that Fortner entered Sublett's house with the express intent to commit multiple crimes. Fortner denied being present at all. Thus, there was no evidence which would have warranted an instruction on first-degree criminal trespass.
III. Improper Cross-Examination.
Fortner next raises an unpreserved issue concerning the Commonwealth's cross-examination of him. Specifically, he argues that the Commonwealth used inadmissible hearsay in its cross-examination of him. He also contends that the prosecutor improperly commented on this lack of cooperation with the police and his request for an attorney. And finally, he argues that the prosecutor improperly asked him to comment on whether the sheriff lied in his report. While Fortner admits that his trial counsel failed to object to the cross- examination, he maintains that the errors rise to the level of palpable error affecting his substantial rights.
During his cross-examination, Fortner stated that Sheriff Bobby Jack Woods came to his house to question him about the crime. The following exchange took place:
Commonwealth: Is that the time that you told Sheriff Woods that you had guys around that would kill everyone if they saw you?
Fortner: I did not - I have never said anything like that to Mr. Bobby Woods. I actually, when he was at my residence - I can tell you the whole situation if you'd like, or would you like to just ask me questions about it? But I've never told him those words. I asked him, I told him to be careful that Chris Smith knew people that would hurt him, is what I said, and asked and I actually told him to have a good night and everything. I was very respectful to them whenever they were at my residence.
Commonwealth: Bobby Woods said you became very aggressive, you said you had guys around looking to kill everybody if they saw you.
Fortner: I would never say that to law enforcement.
Commonwealth: That you had nothing to say, that you demanded an attorney?
Fortner: That's not, no sir that's not ...
Commonwealth: The Sheriff lied in his report?
Fortner: To be honest with you, yes he did.
Commonwealth: All right.
On re-direct, counsel asked Fortner about his conversation with Sheriff Woods. Later, after the jury had been sent out for deliberations, the foreperson sent out a question asking to see Sheriff Woods's report. After consulting with the Commonwealth and the defense, the trial court spoke to the jury and explained that that the report had not been introduced and that the jury should not draw any inferences for or against either party. During the court's discussion, several jurors asked about the Commonwealth's representations concerning the Sheriff's report. Back in the courtroom, the trial court and the parties discussed the situation. The court prepared a written admonition explaining that the report was not introduced and that the jury could only consider evidence that was introduced into evidence. The Commonwealth and Fortner's counsel agreed to the admonition sent to the jury.
We agree with Fortner that the Commonwealth's line of questioning was clearly improper. The Commonwealth was not entitled to use hearsay testimony from Sheriff Woods's report during its cross-examination. Since Sheriff Woods did not testify at trial, use of the police report also raises significant concerns regarding Fortner's rights under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 51-55, 124 S. Ct. 1354, 1364-65, 158 L. Ed. 2d 177 (2004). The questions concerning Fortner's request for an attorney and his lack of cooperation with law enforcement were likewise improper. Ordway v. Commonwealth, 391 S.W.3d 762, 777-78 (Ky. 2013). Similarly, the Commonwealth is generally not permitted to ask a witness to express an opinion as to whether another witness is lying. Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997).
However, Fortner's counsel did not make a contemporaneous objection to any of these questions. Rather, counsel only raised the issue indirectly after the jurors asked to see Sheriff Woods's report. Under the circumstances, Fortner's objections are not preserved for review. RCr 10.26 permits review of unpreserved errors if they affected "the substantial rights" of a defendant and resulted in "manifest injustice." To determine whether manifest injustice has occurred, an appellate court must find that on the whole case there is a substantial possibility that the result would have been different had the error not occurred. Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011). Finally, when reviewing claims of prosecutorial misconduct, we must focus on the overall fairness of the trial and may reverse only if the prosecutorial misconduct was so improper, prejudicial, and egregious as to have undermined the overall fairness of the proceedings. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
Kentucky Rules of Criminal Procedure.
In this case, there was substantial evidence linking Fortner to the crime. Against this evidence, Fortner only offered his general denial of any involvement in the burglary. Despite this evidence, the jury declined to convict Fortner of first-degree burglary or unlawful imprisonment. Furthermore, the improper questions comprised only about a minute of the trial. In addition, Fortner's counsel agreed to the admonition given to the jury. Finally, we note that a defendant's failure to object to a Moss violation generally precludes relief under the palpable error rule. Moss, 949 S.W.2d at 583.
A defendant is guaranteed a fair trial, but that does not mean a perfect trial free from any and all possible error. Springer v. Commonwealth, 998 S.W.2d 439, 459 (Ky. 1999) (citing Michigan v. Tucker, 417 U.S. 433, 446, 94 S. Ct. 2357, 2365, 41 L. Ed. 2d 182 (1974)). While we do not approve of the prosecutor's questions during cross-examination, we cannot find that they affected the outcome of the trial given their limited scope. Therefore, we find no palpable error in this regard.
IV. Denial of Motion to Suppress In-Court Identification.
Fortner's third and final argument is that the trial court erred by denying his motion to exclude Sublett's in-court identification of him. Following the burglary, the police presented Sublett with a photo-pack which included a photograph of Fortner obtained from his old Florida driver's license. Sublett was unable to identify Fortner from any of the photos shown. But as noted above, Sublett identified Fortner from news report containing a photo of Fortner taken when he was arrested. Upon seeing the photo, Sublett contacted the police and told them that she was certain that Fortner was the other man who forced his way into her house.
Fortner argues that Sublett's later identification of him was inherently unreliable and should have been excluded. Our standard when reviewing a trial court's decision on a motion to suppress evidence is two-pronged. First, we initially look to whether the trial court's findings of fact are supported by substantial evidence. If the findings of fact are supported by substantial evidence, such findings are conclusive. See RCr 8.27 and Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). Second, we conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). See also Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005).
A conviction based on identification testimony following pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The determination of whether the in-trial use of identification testimony violates due process involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If so, the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive.Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999) (cleaned up). See also Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
As the trial court noted, Sublett's identification of Fortner did not involve any police action suggesting a particular outcome. Rather, Sublett independently identified Fortner from her own viewing of the news report. The trial court agreed that the news report created a risk of suggestive identification. Nevertheless, the court found that Sublett had a clear opportunity to see Fortner during the burglary and her identification was reliable. Finally, the court pointed out that any discrepancies in Sublett's identification could be addressed through cross-examination.
We conclude that the trial court properly analyzed Fortner's suppression motion. As a general rule, pre-trial screening of eyewitness identification is limited to situations where the suggestive circumstances were arranged by law enforcement officers. Perry v. New Hampshire, 565 U.S. 228, 232-33, 132 S. Ct. 716, 720-21, 181 L. Ed. 2d 694 (2012). Where no improper law enforcement activity is alleged,
it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post[-]indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.Id., 565 U.S. at 233, 132 S. Ct. at 721.
Despite the absence of direct involvement by law enforcement in Sublett's identification, the trial court applied the two-part test for reliability under Dillingham and Biggers. After considering the totality of the circumstances, the court found that the identification was reliable even though the circumstances of her identification were suggestive. We conclude that the trial court's conclusions were supported by substantial evidence and were not clearly erroneous. Therefore, we find that the trial court did not abuse its discretion by denying Fortner's motion to suppress the in-court identification.
V. Conclusion
Accordingly, we affirm the judgment of conviction by the Boyd Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky