Opinion
NO. 2014-CA-001341-MR
05-27-2016
ROBERT JAY WALTERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NOS. 13-CR-00495-004 & 14-CR-00314 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND TAYLOR, JUDGES. TAYLOR, JUDGE: Robert Jay Walters brings this appeal from a final sentence of imprisonment entered in the Warren Circuit Court on July 18, 2014, adjudicating him guilty of promoting contraband, possession of marijuana, and with being a persistent felony offender in the first degree. We affirm.
On June 3, 2013, while incarcerated in the Warren County Regional Jail, Walters and four other men were charged with promoting contraband in the first degree and possession of marijuana. The charges stemmed from an incident wherein five inmates were detected on a security camera simultaneously leaving their bunk area and heading into the restroom. A deputy jailer was sent to investigate the situation. Upon entering the restroom, the deputy found Walters spraying a cleaning solution, and two fully-clothed inmates coming out of a shower stall. Thereupon, the deputy searched the shower stalls and discovered two other fully-clothed inmates inside another stall. The deputy's search of the stalls also revealed a portion of a hand-rolled marijuana cigarette. A strip search of the inmates revealed that one inmate had an empty baggie that smelled of marijuana. A subsequent search of the bunk area revealed that yet another inmate had a lighter, a small baggie of tobacco, and a Bible with missing pages. The pages were allegedly torn out and used to roll cigarettes.
The hand-rolled cigarette discovered by the deputy was later field tested and was positive for marijuana.
All five inmates were indicted upon charges of promoting contraband in the first degree and possession of marijuana. Walters was also indicted with being a persistent felony offender in the first degree. Four of the inmates entered into plea agreements with the Commonwealth, but Walters refused to do so. Following a two day jury trial in July of 2014, Walters was found guilty of promoting contraband in the first degree, possession of marijuana, and with being a persistent felony offender. The circuit court sentenced Walters to a total of fifteen-years' imprisonment. This appeal follows.
Walters contends that the circuit court erred by failing to direct a verdict of acquittal upon the offenses of promoting contraband in the first degree and possession of marijuana. Walters specifically asserts "there was conflicting testimony regarding the field test used for marijuana in this case, and the Commonwealth did not establish reliability or lay a foundation for the test used." Walter's Supplemental Brief at 3. Essentially, Walters is attacking the admissibility and weight of the testimony presented by the Commonwealth at trial.
The standard of review upon a motion for directed verdict was articulated by the Kentucky Supreme Court in Commonwealth v. Benham, 816 S.W.2d 186 (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.Id. at 187 (emphasis added); Kentucky Rules of Civil Procedure (CR) 50.01. And, "[a] court must be mindful of the rule that 'credibility and weight of the evidence are matters within the exclusive province of the jury.'" Reynolds v. Com., 113 S.W.3d 647, 650 (Ky. App. 2003) (quoting Com. v. Smith, 5 S.W.3d 126, 129 (Ky. 1999)).
Kentucky Rules of Civil Procedure 50.01 provides:
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
Promoting contraband in the first degree is set forth in KRS 520.050 and provides as follows:
(1) A person is guilty of promoting contraband in the first degree when:
(a) He knowingly introduces dangerous contraband into a detention facility or a penitentiary; or
(b) Being a person confined in a detention facility or a penitentiary, he knowingly makes, obtains, or possesses dangerous contraband.
And, possession of marijuana is contained in KRS 218A.1422 which states:
(2) Promoting contraband in the first degree is a Class D felony.
(1) A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana.
(2) Possession of marijuana is a Class B misdemeanor, except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no greater than forty-five (45) days.
In this case, there was evidence presented that five inmates simultaneously left their bunks and headed into the restroom together. Walters was among those discovered in the restroom. The substance in the discarded cigarette was identified as marijuana, and Walters' urine test was positive for marijuana. There was also testimony from another inmate that Walters smoked the marijuana before the deputy entered the restroom.
Drawing all fair and reasonable inferences from the evidence in favor of the Commonwealth, there was sufficient evidence to induce a reasonable juror to believe beyond a reasonable doubt that Walters was guilty of promoting contraband and possession of marijuana. Questions regarding the proper weight to be accorded particular evidence must be reserved for the jury. Thus, we conclude that the circuit court properly denied Walters' motion for directed verdict.
Walters also contends that the circuit court erred by failing to administer the requisite oath to the bailiff and by not instructing the jurors to leave their cell phones with the court. Walters concedes that this issue was not preserved for appellate review but requests this Court to review it under the palpable error rule of Kentucky Rules of Criminal Procedure (RCr) 10.26.
RCr 10.26 provides that unpreserved error may be considered on appeal if the error is palpable. A palpable error generally affects the substantial rights of a party and will result in manifest injustice if not reviewed by the appellate court. Schoenbachler v. Com., 95 S.W.3d 830 (Ky. 2003). Succinctly stated, a palpable error occurs when there exists a substantial possibility that the result of the trial would have been different absent the error. Brewer v. Com., 206 S.W.3d 343 (Ky. 2006).
An officer in charge of a jury is required to take an oath to keep the jury together and insulate them from communications regarding the case. 9 Abramson, Kentucky Practice - Criminal Practice and Procedure §25:61 (5th ed. 2015). RCr 9.68 specifically provides:
When the jury is kept together in charge of officers, the officers must be sworn to keep the jurors together, and to suffer no person to speak to, or communicate with, them on any subject connected with the trial, and not to do so themselves.Despite the requirements of RCr 9.68, the Kentucky Supreme Court held that it was not reversible error if the trial court failed to administer the oath to the officer so long as the "officer actually performs his duties." Cole v. Com., 553 S.W.2d 468, 471 (Ky. 1977). In other words, if the officer complies with his duties as outlined in RCr 9.68 and keeps the jurors together and does not permit communication about the trial, the error is not grounds for reversal. Id.
In the case sub judice, the only specific allegation made in connection with the officer in charge of the jury is that the jurors' phones were not taken away during jury deliberations. However, Walters does not allege that any juror used their phone during deliberations or otherwise participated in any inappropriate communication. Considering the unique circumstances of this case, we do not believe that Walters has demonstrated that a palpable error occurred.
For the foregoing reasons, the final sentence of imprisonment of the Warren Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky BRIEFS FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky