Opinion
NO. 2011-CA-001943-MR
07-27-2012
LARRY DANIEL JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Sharon K. Allen McKee, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JACKSON CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 09-CR-00012
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND DIXON, JUDGES. CLAYTON, JUDGE: Larry Daniel Johnson appeals as a matter of right from a judgment convicting him of second-degree burglary and first-degree robbery for which he was sentenced to ten years of imprisonment. After careful consideration, we affirm.
On January 10, 2009, after midnight, three men broke into the home of Roy Durham, who lived alone. They were wearing masks, hoodies, and gloves. The intruders pointed a shotgun at Durham, tied him up, ransacked his home and stole his personal property. The incident lasted about three hours. According to Durham, the value of the stolen property was approximately $1,000.
The subsequent investigation led to Ronald Whitley Witt because he possessed some coins that had been taken in the burglary. Witt gave a statement about his involvement and implicated Adam Tudor and Larry Daniel Johnson (hereinafter "Johnson"). Next, Tudor was questioned, and he incriminated Witt, Tudor, Johnson, and Cory Johnson. Later, it was determined that Tudor lied about Cory Johnson's involvement and, hence, he was never indicted.
Upon questioning by law enforcement, Witt and Tudor admitted that they participated in the burglary and robbery. Witt made his statement a few days after the robbery. In his statement, Witt said that Johnson and he planned the robbery a few days before it occurred. In addition, he said that Tudor was unaware of the planned robbery until the night it occurred. Tudor's statement was made three days after the robbery.
Johnson was indicted by the Jackson County Grand Jury on one count of first-degree burglary, one count of theft by unlawful taking, one count of criminal conspiracy to commit burglary, one count of first-degree robbery, and one count of second-degree unlawful imprisonment. Eventually, Johnson was tried separately from Witt and Tudor.
Witt was the first person tried. He was convicted and sentenced to ten years of imprisonment. Tudor was the next party scheduled for trial. Besides this indictment, he had seven other pending felony indictments and was facing the potential for 180 years of imprisonment with 85 percent parole eligibility for the robbery first-degree. The Commonwealth offered Tudor a plea agreement in exchange for his testimony against Johnson. After negotiating the plea, Tudor pled guilty and agreed to testify against Johnson at Johnson's trial. Subsequently, following Tudor's conviction, the Commonwealth offered Witt a plea agreement on his other pending burglary charges. They offered him concurrent sentencing on these other charges if he would agree to testify at trial against Johnson. Witt agreed and pled guilty to the remaining indictments and was sentenced concurrently.
Johnson's trial was held on June 13 and 14, 2011. The Commonwealth called four witnesses - Detective Joie Peters, Durham, Witt, and Tudor. Johnson made no opening statement and called no witnesses. At the conclusion of the trial, the jury found Johnson guilty of first-degree burglary and first-degree robbery but not guilty of second-degree false imprisonment. The jury recommended that Johnson serve two concurrent ten-year sentences. Post-trial, Johnson made a motion for a judgment of acquittal because the jury made its decision on the basis of insufficient evidence and relied on jury instructions, which he claims made it unreasonable for the jury to find him guilty. Similarly, Johnson made a motion for a new trial based on the grounds that the Commonwealth allegedly commented during closing arguments about Johnson's right to remain silent.
On September 15, 2011, following the denial of these two motions, the trial court entered a judgment, in accord with the jury recommendation, and sentenced Johnson to two ten-year sentences for each charge and ordered that the sentences run concurrently. Johnson now appeals from this order.
Johnson maintains that the trial court erred by its failure to order a mistrial based on the Commonwealth's impermissible and unconstitutional reference to Johnson's right to remain silent during its closing argument and that the trial court erred when it failed to grant a directed verdict or judgment of acquittal. In contrast, the Commonwealth contends that it never commented on Johnson's right to remain silent during the closing argument and, consequently, the trial court did not err. Moreover, the Commonwealth argues that Johnson was not entitled to a directed verdict because: first, a portion of his claims are not preserved, and second, sufficient evidence existed for the jury to find Johnson guilty.
Turning to Johnson's first argument that his conviction must be reversed because the Commonwealth improperly commented upon his failure to testify at trial, we have reviewed the comments in context and find no error. It is, of course, true that the Fifth Amendment of the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Notwithstanding whether the Commonwealth made such an insinuation, it is also true that if a reviewing court determines that an improper reference was made about a defendant's decision to remain silent it is not necessarily sufficient for reversal. To avoid reversal, its effect, being constitutional error, must be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 26, 87 S. Ct. 824, 829, 17 L. Ed. 2d 705 (1967).
In the case at hand, the prosecutor's comments, for which there was an objection, did not refer to Johnson's failure to testify. A review of the trial shows that the prosecutor only referred to the fact that the defense did not call any witnesses. In his closing argument, the prosecutor noted that two other defendants (Witt and Tudor) testified that Johnson committed the crime with them. Further, the prosecutor highlighted that Johnson presented no alibi. In doing so, the Commonwealth stated "the key in this case is the witness who never testified." The defense counsel immediately objected that this statement was an impermissible comment on Johnson's right to remain silent. The trial court disagreed and denied the motion. The Commonwealth's inference here is not that Johnson failed to testify but that no other witness came forward to give him an alternate location at the time of the crime.
The prosecutor went on and explained that the two co-defendants testified that Johnson was present even though Johnson claims he was not involved. The prosecutor then asked again whether there was a witness who could vouch for where Johnson was at the time of the crime. Defense counsel again objected stating that the Commonwealth was shifting the burden of proof and commenting on Johnson's right to remain silent. The trial court again disagreed, denied the motion, and recognized Johnson's continuing objection.
At no time during closing arguments did the Commonwealth make any direct statement as to Johnson's silence. Rather, the Commonwealth, using the negative inference from the evidence, argued that no witness was provided to place Johnson somewhere else. Such an inference does not implicate Johnson's right to remain silent. And, such an argument is permissible.
In reviewing whether a prosecutor's remarks are related to the criminal defendant's right to remain silent, we must analyze the remarks as to whether they were "manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and necessarily take [them] as such." Bowling v. Commonwealth, 873 S.W.2d 175, 178 (Ky. 1993), and Ragland v. Commonwealth, 191 S.W.3d 569, 590 (Ky. 2006). Here, the comments made do not implicate the defendant's silence or suggest that his silence is significant to a jury. Indeed, the defendant is not the person that the prosecution is referencing when it uses the term "witness." For a trial court to grant a mistrial there must be a manifest necessity for one. Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001). In the instant case, since there was no manifest necessity for a mistrial, the trial court did not err.
The next argument proffered by Johnson is that the trial court erred when it failed to grant a directed verdict or judgment of acquittal. Again, our review demonstrates that the trial court did not err when it denied these motions. The standard for a directed verdict is well known. When a motion for a directed verdict is made in a criminal proceeding, the trial court draws all fair and reasonable inferences from the evidence in favor of the Commonwealth and reserves to the jury all questions of credibility and the weight of the evidence. See Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). But, on appeal, the reviewing court must determine 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." Id.
Johnson argues that it was clearly unreasonable for the jury to find him guilty and, therefore, he is entitled to a directed verdict. At trial, Johnson maintained that the two witnesses were not credible and, hence, he was entitled to a directed verdict. Our review, however, shows nothing that diminishes the jury's determination that the witnesses were credible. Furthermore, Johnson never established any reason to find the witnesses not credible other than innuendo. Accordingly, the trial court did not err when it denied the motion for a directed verdict and the later motion for a judgment of acquittal on these grounds. Under the evidence as a whole, it was not unreasonable for the jury to find Johnson guilty.
Notwithstanding Johnson's reasons at trial for making a directed verdict motion, in his appellate brief, and under his motion for judgment of acquittal, he is now claiming that the witnesses were credible but their testimony did not satisfy the elements for the crimes of burglary or robbery. Under Kentucky Rules of Civil Procedure (CR) 50.01, "[a] motion for a directed verdict [must] state the specific grounds therefor." Kentucky courts have consistently held that failure to state the specific grounds for a directed verdict will prevent an appeal court from review of the trial court's denial of a directed verdict. Johnson's mere mention of the rote recitation by defense counsel of the various motions for directed verdict does not support these new reasons. At no time during the trial did Johnson state that the Commonwealth had failed, through its witnesses, to prove that the elements of the crimes had not been established. Therefore, Johnson failed to preserve this argument.
Accordingly, the judgment and sentence of the Jackson Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Sharon K. Allen
McKee, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky