Opinion
NO. 2015-CA-000777-MR
05-06-2016
STEVEN MICHAEL HAWS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jason A. Hart Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 14-CR-00045 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER AND NICKELL, JUDGES. KRAMER, JUDGE: Appellant, Steven Michael Haws, appeals as a matter of right from a judgment of the Ballard Circuit Court convicting him of assault in the third degree; fleeing and evading police in the first degree; operating a motor vehicle under the influence of alcohol, second offense; and reckless driving. He was sentenced to a total of twelve-years' imprisonment as a result of his plea of guilty to being a persistent felony offender. He was also assessed $200.00 in fines and ordered to pay $550.00 in court costs. Having reviewed the arguments of the parties, the record and the applicable law, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2014, Kentucky State Police Trooper Logan Smith was parked in his patrol car at a gas station observing traffic. At approximately 11:00 p.m., Trooper Smith observed a vehicle driving erratically and at a high rate of speed. Immediately after the vehicle passed his patrol car, Trooper Smith activated his emergency lights and siren and gave pursuit. The vehicle did not stop immediately; rather it continued a few blocks and pulled into a driveway.
After the vehicle came to a rest in the driveway, Haws exited the vehicle and proceeded to walk into what was later determined to be Haws' residence. Trooper Smith ordered Haws to stop, but Haws ignored him and ordered him to leave his property. As Haws walked to his front door, Trooper Smith observed that Haws' speech was slurred and that he smelled of alcohol. He also noticed blood coming from Haws' elbow.
After the delivery of the verdict, but before dismissing the jury, the trial court informed the jury that the source of Haws' bleeding elbow was a breaking and entering incident earlier in the evening in which Haws was a suspect. Due to this incident, other law enforcement officers in the area were seeking Haws. However, Trooper Smith did not have this information when he saw Haws speed past his patrol car.
Trooper Smith followed Haws to the entryway of his residence and asked Haws to come outside so that they could speak. Haws belligerently refused to speak with Trooper Smith and continually demanded that he leave his property. At this time, according to Trooper Smith, Haws was approximately ten feet from the entryway of the home and in an aggressive posture. Perceiving a threat, Trooper Smith pulled his taser and pointed it at Haws. Haws proceeded to take off his necklace, step closer to Trooper Smith, and reach for the top of a television stand, which was to his immediate right. It was when Haws extended his hand to the top of the television that Trooper Smith discharged his taser and hit Haws in the chest. Haws fell to the floor, and a pair of brass knuckles fell out of his right hand. Haws continued to be upset and continued to resist. He did not listen to Trooper Smith's orders. Trooper Smith then discharged his taser a second time. After the second hit with the taser, Haws complied with the trooper's instructions and was taken into custody without further incident.
Initially upon arrest, Trooper Smith charged Haws with first-degree fleeing and evading police (on foot), resisting arrest, careless driving, and operating a motor vehicle under the influence, second offense. However, the charges were changed upon presentation to the grand jury. Haws was ultimately indicted for first-degree fleeing and evading (motor vehicle), third-degree assault, reckless driving, operating a motor vehicle under the influence of alcohol, second offense, and first-degree persistent felony offender.
A jury trial was conducted on November 24, 2014, and Haws was found guilty on all charges. On the same day, Haws pleaded guilty to being a persistent felony offender in the first degree. The trial court later found Haws to be indigent for appellate purposes, and the Department of Public Advocacy was appointed to represent him in this matter of right appeal.
Haws raises five claims of error on appeal: 1) the evidence was not sufficient to convict him of third-degree assault; 2) the evidence was not sufficient to convict him of first-degree fleeing and evading police; 3) the Commonwealth made improper remarks during its closing argument; 4) the trial court's imposition of fines was erroneous; and 5) the trial court's imposition of court costs was erroneous. Further facts will be developed as necessary.
II. ANALYSIS
A. Directed Verdict
The standard for a directed verdict is outlined 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.As a reviewing court, we are not to make determinations regarding credibility or weight of the evidence. Benham, 816 S.W.3d at 187. We are "to affirm . . . unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (citations omitted). With these standards in mind, we review whether the trial court erroneously denied Haws' motions for a directed verdict.
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.
1) Sufficiency of Evidence for Third-Degree Assault
Haws first argues that the court erred by denying his motion for a directed verdict on his third-degree assault charge. Haws preserved this issue for appellate review by his motion for a directed verdict at the close of the Commonwealth's case, which was also the close of all of the evidence.
Under KRS 508.025(1), a person is guilty of third-degree assault when he "[r]ecklessly, with a deadly weapon or a dangerous instrument, or intentionally causes or attempts to cause physical injury to . . . [a] state, county, city or federal peace officer." Here, the Commonwealth's theory was that Haws intentionally attempted to injure Trooper Smith by attacking him using a set of brass knuckles. The jury instructions defined "attempt" as:
When acting with a kind of culpability otherwise required for commission of the crime, the defendant intentionally does or admits to do anything which, under the circumstances as the defendant believes them to be, is a substantial step in the course of conduct planned to culminate in his commission of the crime.Haws argues that there was no evidence presented at trial that he lunged at, swung at, or caused any physical injury to Trooper Smith; therefore, it would be unreasonable for the jury to find that he took a substantial step in committing third-degree assault. After review of the record, we disagree.
In his brief Haws takes issue with the trial court using a portion of KRS 506.010 to define what attempt means under KRS 508.025. Haws did not raise this specific ground of error to the trial court; therefore, he is precluded from raising it for the first time on appeal. See Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) ("A new theory of error cannot be raised for the first time on appeal."). --------
"[S]ubstantial steps . . . are overt acts . . . which convincingly demonstrate a firm purpose to commit a crime, while allowing police intervention, based upon observation of such incriminating conduct, in order to prevent the crime when criminal intent becomes apparent." Commonwealth v. Prather, 690 S.W.2d 396, 397 (Ky. 1985) (internal quotations ommitted). The focus should be on "what acts have been carried out and not on what additional acts would have been even more convincing." Id. The totality of the circumstances must be considered in determining whether the overt act is a substantial step in committing the crime. Id. KRS 506.010(2) states that "[c]onduct shall not be held to constitute a substantial step . . . unless it is an act or omission which leaves no reasonable doubt as to the defendant's intention to commit the crime which he is charged with attempting." The "no reasonable doubt" requirement of this section is a matter for jury determination. Slaughter v. Commonwealth, 45 S.W.3d 873, 875 (Ky. App. 2000) (citing Prather, 690 S.W.2d at 398).
In our opinion, the jury in this case was presented with sufficient evidence with which it could find that Haws took a substantial step toward assaulting Trooper Smith and that when the criminal intent became apparent, Trooper Smith properly intervened to prevent the crime. The evidence included testimony establishing that Haws was highly intoxicated; he was being hostile and aggressive toward Trooper Smith; he ignored Trooper Smith's lawful order to stop; he proceeded into his residence with clinched fists and attempted to grab a set of brass knuckles; and that Trooper Smith tased Haws and arrested him before the situation could escalate any further.
While individually the acts testified to by Trooper Smith, including Haws grabbing the brass knuckles, might properly be characterized as merely preparatory, the totality of the circumstances indicates that Haws took a substantial step to assault Trooper Smith. See Prather, 690 S.W.2d at 397. ("[O]vert acts, the substantial step, must be considered under all of the circumstances of the case to discover whether they manifest a clear intent to commit the crime."). Considering "the evidence as a whole," we cannot say "it would be clearly unreasonable for a jury to find guilt" on the third-degree assault charge based on attempted intentional assault of Trooper Smith. Benham, 816 S.W.2d at 187. Accordingly, the trial court did not abuse its discretion when it denied Haws' motion for a directed verdict.
2) Sufficiency of Evidence for First-Degree Fleeing and Evading
Haws also argues that the trial court improperly denied his motion for a directed verdict on the charge of first-degree fleeing and evading police (motor vehicle). Haws preserved this issue for appellate review by his motion for a directed verdict at the close of the Commonwealth's case.
Under KRS 520.095, a person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
. . . .
2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010[.]
At trial, the Commonwealth argued that Haws knowingly disobeyed a lawful order to stop, while driving his vehicle under the influence of alcohol. Haws does not dispute that he was driving a motor vehicle or that he was under the influence of alcohol. Instead, in support of his argument that the trial court improperly denied his motion for a directed verdict, Haws argues that there was insufficient proof that he disobeyed a direction to stop his motor vehicle. He contends that he did not flee in his car, but simply chose to park at his house, which was only a block or two from where the officer initiated his lights. We disagree.
First of all, KRS 520.095 makes no mention of a particular distance needed to be covered in order to satisfy the elements of first-degree fleeing and evading. Furthermore, "intent may be inferred from the actions of the defendant or from the circumstances surrounding those actions." Marshall v. Commonwealth, 60 S.W.3d 513, 518 (Ky. 2001).
Trooper Smith testified that he activated his lights and siren immediately after Haws passed, but Haws did not slow down. Instead, he made an aggressive turn onto his street and proceeded to the driveway of his residence. He further testified that there were at least two places where Haws could have safely pulled over before reaching the driveway of his residence. After reaching his residence, Haws again disobeyed Trooper Smith's order to stop and proceeded to walk inside his residence.
Haws' intent to flee and invade could be inferred by his continuing to his residence after he had been directed by a police officer to stop his vehicle even though he had several places where he could have safely stopped his vehicle. His intent to flee or evade was further shown by the fact that he did not heed Trooper Smith's command to stop once he was out of his vehicle, instead continuing the flight on foot. Given Trooper Smith's testimony, the evidence presented at trial was sufficient to allow a reasonable jury to conclude that Haws, with the intent to elude or flee, knowingly disobeyed a direction from Trooper Smith to stop his motor vehicle. Accordingly, the question of whether Haws was guilty of first-degree fleeing and evading was properly submitted to the jury.
B. Commonwealth's Comment to the Jury
Haws next argues that the Commonwealth made an improper statement during its closing argument. During its closing argument the Commonwealth stated:
Don't fall for smoke and mirrors ladies and gentlemen. Follow the truth. And the truth is that twelve citizens just like you in Ballard County, felt that he should stand trial on fleeing and evading first-degree. That he should stand trial for assault in the third degree.Haws did not object to the contested statement at trial; therefore, the issue is unpreserved. However, Haws agrues that the error resulted in a manifest injustice and requests we grant his request for review under RCr 10.26.
RCr 10.26 provides that an unpreserved error may be reviewed on appeal if it is "palpable" and "affects the substantial rights" of a defendant, resulting in a "manifest injustice." Shoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003). "What it really boils down to is that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial." Id. (quoting Abernathy v. Commonwealth, 39 S.W.2d 949, 952 (Ky. App. 1969), overruled in part on other grounds by Blake v. Commonwealth, 646 S.W.2d 718 (Ky. 1983)).
When considering reversal for prosecutorial misconduct during closing argument, our Supreme Court in Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002), adopted the standard articulated by the Sixth Circuit in United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994). Under that standard, we are to reverse for prosecutorial misconduct only if the misconduct is "flagrant" or if each of the following three conditions is met: 1) proof of the defendant's guilt is not overwhelming; 2) defense counsel objected; and 3) the trial court failed to cure the error with a sufficient admonishment to the jury. Barnes, 91 S.W.3d at 568. Here, because Haws failed to object, in order to reverse we would have to find that the alleged misconduct was flagrant.
We are instructed to consider four factors in determining whether a prosecutor's misconduct was flagrant: "1) whether the remarks tended to mislead the jury or to prejudice the accused; 2) whether they were isolated or extensive; 3) whether they were deliberately or accidentally placed before the jury; and 4) the strength of the evidence against the accused." Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010) (overruled on other grounds by Commonwealth v. Hatsch, 421 S.W.3d 349 (Ky. 2013) (quoting Carroll, 26 F.3d at 1380)).
Haws asserts that the Commonwealth engaged in flagrant misconduct by suggesting that the guilt could be inferred from the fact that he had been indicted. We disagree with Haws and find no error, palpable or otherwise.
In Kiper v. Commonwealth, 399 S.W.3d 736 (Ky. 2012), the prosecutor argued in his closing argument:
Ms. Saylor, she's not a person of special privilege and she's not a ham sandwich. It wasn't indicted or not indicted by any particular favoritism to anyone. This is a case about people being harmed, about people being crippled. It's a case about violence, about violence in our community. That's why the grand jury listened to the evidence in this case; that's why they indicted; that's why we're here today.Id. at 749. Our Supreme Court held that there was no error in the prosecutor's comment. The Court found that the prosecutor was responding to the defense claim that the grand jury would indict anyone for any reason, and the statement did not suggest that guilt should be inferred from the fact that the defendant was indicted.
In the present case, Haws continually argued that he should not be on trial for fleeing and evading in the first degree and assault in the third degree because Trooper Smith initially charged him with fleeing and evading in the second degree and resisting arrest. Haws repeatedly emphasized this argument in his opening statement, on cross-examination of Trooper Smith, and in his closing argument. In closing, Haws even suggested that the grand jury's goal was to "jack charges up."
Like the prosecutor in Kiper, here the Commonwealth was merely responding to Haws' persistent claims that he was indicted for the wrong offenses. "[A] prosecutor is entitled to draw reasonable inferences from the evidence, make reasonable comment upon the evidence and make a reasonable argument in response to matters brought up by the defendant." Driver v. Commonwealth, 361 S.W.3d 877 (Ky. 2012) (citations omitted).
Moreover, the comment was isolated and not extensive and the strength of the evidence was strong, as there was no dispute as to the facts. Thus, even if we were to find prosecutorial misconduct, we would not find that the conduct was flagrant. Accordingly, Haws' claim of prosecutorial misconduct is without merit.
C. Misdemeanor Fines and Court Costs
Haws claims that the trial court erroneously levied misdemeanor fines and court costs against an indigent defendant. This issue is not preserved. However, Haws correctly points out that this Court may review an alleged sentencing error for the first time on appeal. See Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010).
Subsection (4) of KRS 534.040 provides that "[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31." Nor may court costs be levied upon defendants found to be poor. KRS 23A.205(2). Recently in Trigg v. Commonwealth, 460 S.W.3d 322 (Ky. 2015), our Supreme Court held that "[u]nless the imposition of a fine [and court costs] upon an indigent or 'needy' person is apparent on the face of the judgment or is in obvious conflict with facts established in the record (such as plainly having been found indigent at all stages of the trial proceedings), we do not regard it as a sentencing error . . . ." Id.
Here, at the sentencing hearing, the trial court specifically found that Haws was not a poor person as defined in KRS 453.109(2). It ordered that Haws pay his court costs and fines upon six months of being released. Haws did not object at trial, but argues that this judgment was inconsistent with the record as he was earlier found by the trial court to be indigent and also found to be indigent for the purposes of appeal. Furthermore, he contends that his affidavit of indigency stated that his income was only $200.00 a month in food stamps before his incarceration. The Commonwealth agrees that the imposition of fines and court costs was erroneous; however, we do not agree.
It is true that after Haws' arraignment, the trial court found him to be indigent based on his affidavit. However, before Haws was indicted, he employed the services of private counsel and was represented by private counsel throughout trial. At the sentencing hearing the trial court found that Haws was able bodied and had money in his commissary throughout the duration of the trial. Although Haws was found indigent for the purposes of appeal, at the time of sentencing there was no indication that Haws was indigent or a "poor" person. Accordingly, we do not believe the trial court erred when it imposed on Haws fines and court costs.
For the reasons stated herein, we affirm the judgment of the Ballard Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jason A. Hart
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky