Opinion
NO. 2012-CA-001075-MR
02-21-2014
JIMMIE LAMAR GRANT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen S. Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NOS. 11-CR-00385 AND 12-CR-00117
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON, AND JONES, JUDGES. CLAYTON, JUDGE: This comes before us on appeal from the Pulaski Circuit Court from a trial in which appellant, Jimmie Grant, was found guilty of Theft by Unlawful Taking Over $10,000 (TBUT over $10,000) and for being a Persistent Felony Offender in the Second Degree (PFO II). Based upon the following, we affirm the verdict and sentence.
BACKGROUND INFORMATION
Grant and Tracy Salmon were hired to clean the home of David and Patricia Hall in December of 2009. After the completion of their job, Grant began working for the Halls doing odd jobs. Grant stole items belonging to the Halls at various times and sold them to pawn shops in the area. Grant argued at trial that he was selling the items to support his drug habit.
In April of 2012, Grant was convicted by a jury of TBUT over $10,000. The jury also found Grant guilty of PFO II during the penalty phase of his trial. He was sentenced to 18 years and ordered to pay restitution in the amount of $169,268.00. He now brings this appeal.
DISCUSSION
Grant first contends that the trial court erred in permitting the jury to hear his father's personal opinions of the victims in the case as it was irrelevant and unduly prejudicial. The Commonwealth argues this issue was not preserved, however, Grant contends that it should be reviewed under Kentucky Rules of Criminal Procedure (RCr) 10.26, if we find that it was not.
Grant's father, Mike Grant, was called by him to testify during the penalty phase of his trial. Mike testified that Grant was upset he had disappointed David Hall by stealing from him. Grant contends that Mike was not questioned during direct examination regarding his opinion of the Halls, specifically David, and that, therefore, the trial court erred in allowing a taped conversation between him and his father regarding Mike's opinions of David.
We review whether evidence was properly admitted under an abuse of discretion standard. Brewer v. Commonwealth, 206 S.W.3d 313 (Ky. 2006). The Commonwealth asserts that, at trial, Grant only objected to the timeliness of his receipt of the tape of the conversation between him and his father and, consequently, this issue was not preserved. We agree. Thus, rather than an abuse of discretion standard, we will only reverse the ruling if there was manifest injustice. See Kentucky Rules of Criminal Procedure (RCr) 10.26.
The Commonwealth argues that it played a portion of the taped conversation in order to impeach Mike's testimony regarding his statement that he had not referred to Hall in a derogatory manner. We hold the trial court's decision to allow the portion of the tape where Mike spoke of his feelings about Hall to have been introduced properly to impeach his testimony. Kentucky Rules of Evidence (KRE) 613; KRE 801A(a)(1). Mike testified that the Halls were good people, yet his remarks on the tape indicate that was not how he truly felt about them. It was not manifest injustice for the trial court to allow portions of the tape to be played.
Next, Grant contends that the trial court erred in limiting voir dire to a total of ten (10) minutes and, in doing so, violated his rights to effect "cause" and peremptory challenges. We review challenges to voir dire as abuse of discretion. Hayes v. Commonwealth, 175 S.W.3d 574, 584 (Ky. 2005).
The trial court announced prior to the beginning of trial that each side would be allowed ten minutes to conduct voir dire. Specifically, Grant contends that the trial court interrupted his counsel's question to potential jurors about who among them had family members who had dealt with drug abuse and their experience in that regard.
In Sherroan v. Commonwealth, 142 S.W.3d 7, 13 (Ky. 2004), the Kentucky Supreme Court held that neither Kentucky Revised Statutes (KRS) 532.025(2)(b) nor the constitutions of either the United States or Kentucky afforded the right to conduct individual voir dire on specific mitigating circumstances. In this case, Grant's counsel was inquiring regarding the mitigating circumstance of his drug use.
In determining whether limitations on voir dire are an abuse of discretion, a reviewing court must determine whether the defendant received a fundamentally unfair trial due to a juror's undiscovered bias or prejudice. Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010); Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985). After reviewing the record we do not discern any prejudice to the appellant. There was no abuse of discretion by the trial court in not allowing Grant's counsel more time with voir dire to seek out the potential jurors' prejudice or bias regarding a mitigating circumstance. Thus, we hold the trial court did not err in placing a time limit on Grant's counsel during voir dire.
Grant's final argument is that the trial court's failure to permit him to play the interviews between himself and Detective Bobby Jones in order to clear up any misconceptions created by the Commonwealth was in error. As set forth above, we review evidentiary rulings for abuse of discretion. Hayes, supra.
Grant contends that the excerpts of his interview by Detective Jones which were played to the jury gave the impression that he had only cooperated with Detective Jones when asked, rather than volunteering information regarding where he had pawned specific items. He also argues that pursuant to KRE 106, the Rule of Completeness, the tapes should have been played in their entirety. Grant also asserts that the trial court's ruling denied him his constitutional right to present a defense at trial. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Grant contends that the excluded portions of the interview disputed the Commonwealth's evidence that he failed to aid the police and cooperate fully. He argues that it showed his remorse.
KRE 106 provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004). In determining whether it is fair, the issue is whether "the meaning of the included portion is altered by the excluded portion." Young v. Commonwealth, 50 S.W.3d 148, 169 (Ky. 2001).
In determining that the entire interview was not admissible, the trial court held that statements made by Detective Jones relating to Grant's cooperation were not admissible because Jones was not a party in the case. Also, the trial court stated that Grant could use the tape to impeach Jones. Grant's counsel did not, however, ask to use the tape to impeach Jones. Thus, pursuant to KRE 106 we hold that the trial court did not err in denying Grant's use of the entire interview.
Based upon the above, we affirm the decision of the trial court.
JONES, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Karen S. Maurer
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Frankfort, Kentucky