Opinion
NO. 2015-CA-000269-MR
12-09-2016
JERRY WEBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Thomas A. Van De Rostyne Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HON. REBECCA K. PHILLIPS, JUDGE
INDICTMENT NO. 13-CR-00207 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES DIXON, JUDGE: Jerry Webb has appealed from the Carter Circuit Court's denial of a motion to suppress an out of court identification, the hearing for which was held on the first day of a three day trial, on November 12, 2014. He also appeals the order entered January 13, 2015 sentencing him to 10 years in prison, subsequent to the aforementioned jury trial where he was found guilty of Assault in the First Degree. We affirm.
On May 2, 2011, at 10:30 p.m., Lewis "Marty" Roseberry was at home in Olive Hill, Kentucky, watching television in bed with his wife, Debbie, when he saw car lights shine on the wall. Roseberry grabbed his pistol, took it outside, and stood on his porch. A dark colored truck was in his driveway, and two men exited the vehicle. One of the men said, "Marty, it's Estill, you aren't going to shoot us, are you?" Roseberry recognized the man as Estill Stamper, an acquaintance of his daughter's, but he did not know the other man with Stamper. Roseberry then allowed the men to come into his kitchen where they could talk. The men talked with Roseberry for approximately ten minutes. Roseberry thought that Stamper appeared somewhat intoxicated, while the man with him appeared to be very intoxicated. At some point, Debbie Roseberry then called for her husband from the next room, asking why the men were there. He stepped from the room to talk to her. When he came back into the kitchen, he noticed that the men were gone - and so was his prized pistol, which he had placed on top of his refrigerator.
Roseberry went outside to stop the two men, who were getting into the truck. He told them that he wanted his gun, and they said they did not have it. An altercation ensued, during which the unknown man told Roseberry that, "I don't have your gun, but I have a gun," and pulled a semi-automatic pistol out and pointed it at him. Roseberry was not dissuaded, however, and began to pull Stamper from the passenger seat of the truck, whereupon the unknown man in the driver's seat engaged the gearshift into reverse. Roseberry hung onto the door of the vehicle and was dragged a distance of fifty feet or more. At this point, Debbie Roseberry came outside and began to scuffle with the driver, stabbing at him with a pen she took from the driver's pocket. Roseberry pushed his wife out of the way, then turned to get a shovel. The unknown man said, "Watch this," at which point Roseberry heard a pop and felt something he likened to a bee sting in his leg. Debbie Roseberry tried to grab the barrel of the gun, resulting in her hand being cut when the gun was forcibly yanked from her. Roseberry then began to hit the truck with the shovel, whereupon the two men left in that vehicle.
Despite Roseberry's gunshot wound and the cut to Debbie Roseberry's hand, neither called 911 for assistance. Debbie Roseberry called her daughter, who called the emergency responders thereafter. When the ambulance arrived, Roseberry declined that service, electing instead to being transported to the hospital by his daughter and son-in-law. He stated in his testimony that, "I didn't feel like I was, you know, going to die before I got to the hospital." Once Roseberry arrived at the hospital emergency department, he was treated and released within approximately four hours. He was given a prescription of fifteen Lortab for pain, with no refills, and directed to "[u]se crutches until better." He testified that he continues to suffer pain from the gunshot wound, over three years later.
At some point prior to the Roseberrys' departure for the hospital, the sole investigator arrived, then-Deputy Brandon Cox of the Carter County Sheriff's Department. Deputy Cox resigned from duty at some point between the events of this case and the trial, which took place over three years afterward. Deputy Cox did not get statements from the Roseberrys at the scene or collect the bloodstained clothing worn by Roseberry, due to what he perceived as their highly charged emotional state. He did not conduct any gunshot residue testing, but tried to find a shell casing for the fired pistol, but was unable to do so. Deputy Cox did not take photographs of the crime scene, but did take photographs of the injuries suffered by Roseberry and his wife. The 911 dispatch report states that Deputy Cox told the dispatcher that Estill Stamper was the shooter, however Deputy Cox testified to his belief that the report is in error.
After the Roseberrys left for the hospital, Deputy Cox began looking for Stamper and the dark colored truck. He did not find the truck, but he did find Stamper at his apartment, and arrested him for an outstanding warrant. Although Deputy Cox did not believe Stamper to be manifestly under the influence, Stamper was placed in the "drunk tank" of the detention center at 3:21 am on May 3, 2011. Deputy Cox interviewed Stamper about thirty minutes later, at 3:53 am, according to a "consent to interview" Miranda waiver document purportedly signed by Stamper. According to Deputy Cox, Stamper stated in this interview that Webb was with him that day and that Webb shot Roseberry. This testimony was allowed in as a prior inconsistent statement. Deputy Cox believes that he placed a copy of this interview with his case report, however no such record could be found, nor are there any notes of the interview. Deputy Cox then obtained a copy of Webb's driver's license photograph and showed it to Stamper, who allegedly identified the person as Webb. Five days after the interview with Stamper, on May 8, 2011, Deputy Cox collected statements from the Roseberrys as to the events surrounding this incident and showed both of them together the copy of Webb's driver's license photograph. Deputy Cox told the Roseberrys that he had a suspect identified by Estill Stamper before showing them the photograph, and after viewing it they identified Webb as the shooter.
Kentucky Rules of Evidence 801A: "Prior statements of witnesses and admissions. (a) Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: (1) Inconsistent with the declarant's testimony."
Stamper testified for the Commonwealth that he was with Webb on the day in question, but did not remember the events of that day due to his intoxication, only that he woke up in the "drunk tank." He did not remember anyone being shot. He did not remember being interviewed by Deputy Cox, and disavowed signing the "consent to interview" form. Stamper believed that Roseberry frequently carried a pistol in his waistband or in his sock, and that Roseberry was often intoxicated on drugs.
Webb was a 47 year-old man with no prior criminal history when the grand jury indicted him for Robbery in the First Degree and Assault in the First Degree on November 22, 2013. Trial took place from November 12-14, 2014. After jury selection on the first day, the circuit court held a suppression hearing on the defense motion to suppress the single photograph identification of Webb to the Roseberrys as unduly suggestive. The circuit court denied the motion to suppress, finding that while the single photograph was suggestive, further analysis under King v. Commonwealth, 142 S.W. 3d 645 (Ky. 2004) adopting factors from Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), weighed against a finding by the court of substantial likelihood of irreparable misidentification. Following the denial of the motion, the circuit court held Webb's jury trial. The jury found Webb guilty of Assault in the First Degree, whereupon he was sentenced to ten years' imprisonment. This appeal followed.
Webb brings four issues on appeal. The first is that the circuit court erred in its denial of his motion to suppress the out-of-court identification of him based on the single photograph show up. Webb argues that his identification as the second person with Estill Stamper at Roseberry's house on the night of the incident should have been suppressed as being undeniably suggestive and with a high likelihood of misidentification. The Kentucky Supreme Court tells us that:
The determination of whether identification testimony violates a defendant's due process rights involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If not, the analysis ends and the identification testimony is allowed. 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.King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004) (internal citations and quotations omitted).
Addressing the first part of the test, the circuit court acknowledged that the single photograph identification was unduly suggestive. Not only did Deputy Cox use a single driver's license photograph, he also presented it to both Roseberrys at the same time, after priming them for identification by telling them the photograph was of a suspect identified by Stamper. Addressing the second part of the test, however, the circuit court then determined that the suggestive identification was otherwise sufficiently reliable under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), in which the U.S. Supreme Court provided the following factors for assessing the reliability of identifications: "opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382; see also Savage v. Commonwealth, 920 S.W.2d 512, 513-14 (Ky. 1995).
The circuit court found that the identification was otherwise reliable under a totality of the circumstances. Roseberry had full opportunity to observe the person he later identified as Webb for about eight to fifteen minutes in his well-lighted kitchen. The court found that Roseberry was paying enough attention to recognize Webb. Although there is little information in support with the third factor, regarding prior description of the suspect, Roseberry was completely certain as to his identification of Webb for the fourth factor, and did so with no hesitation. Finally, the length of time between crime and confrontation with the photograph was a matter of less than a week. A trial court's decision regarding admissibility of evidence is reviewed for abuse of discretion. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004). Abuse of discretion occurs when the trial court decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Based on the foregoing, we cannot find error with the circuit court's ruling that the identification was otherwise reliable under a totality of the circumstances, as required by Biggers.
Next, Webb argues he was entitled to a directed verdict of acquittal on the first degree assault charge, due to insufficiency of evidence. Specifically, Webb contests that there was no sufficient evidence for any of the prongs of KRS 500.080(15) defining "serious physical injury," and a finding of "serious physical injury" is a necessary prerequisite to conviction for First Degree Assault under KRS 508.010. The prongs defining "serious physical injury" in KRS 500.080(15) are as follows: "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ."
KRS 508.010, Assault in the First Degree: "(1) A person is guilty of assault in the first degree when: (a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person. (2) Assault in the first degree is a Class B felony."
The Commonwealth points out that a directed verdict motion should be denied if the prosecution has more than a scintilla of evidence. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991). However, Webb is also correct in noting that our courts have not hesitated in vacating convictions for First Degree Assault upon an insufficient showing of "serious physical injury." In particular, we are directed to Anderson v. Commonwealth, 352 S.W.3d 577 (Ky. 2011) (no "serious physical injury" where neck along jaw line cut by razor); Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977) (no "serious physical injury" where police officer shot in the chest with bird shot, causing hospitalization for five days and off work recuperating for six weeks); and most significantly McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013) (insufficient proof of serious physical injury where victim suffered a through-and-through gunshot wound). In addition, it should be particularly noted that KRS 500.080(15) sets a "fairly strict level of proof which must be met by sufficient evidence of injury." Anderson at 581 (quoting Prince v. Commonwealth, 576 S.W.2d 244, 246 (Ky. App. 1979)).
This is a close question, especially in light of the similarity of the injury suffered by Roseberry to the one at issue in McDaniel. Roseberry's injury did not require nearly the amount of medical attention found in Luttrell, since Roseberry was shot in the thigh, declined an ambulance, and was released from the hospital emergency room within about four hours. The reasoning applied in Anderson applies here as well: "the issue is not whether there was proof of an act that could cause 'serious physical injury.' The issue is whether there was proof of an act that did, in fact, cause 'serious physical injury.'" Anderson at 581 (citing Commonwealth v. Hocker, 865 S.W.2d 323 (Ky.1993) (Leibson, J., dissenting)) (emphasis added). The Commonwealth counters with the testimony from Roseberry that he still suffered pain from the injury over three years later, and that prolonged pain constitutes "serious physical injury," citing Parson v. Commonwealth, 144 S.W.3d 775, 787 (Ky. 2004). While medical proof is helpful in establishing serious physical injury, it is not absolutely necessary. McDaniel at 660.
Based on these factors, particularly with regard to Parson, we affirm the circuit court ruling denying the motion for directed verdict. The main distinguishing factor between this case and McDaniel is the absence in the latter case of long-term pain. Here, we have testimony from Roseberry that he suffers pain from the injury over three years after the incident. Viewing that testimony in light of Parson, we must conclude that there was no error in denying the directed verdict motion.
Webb next argues that he was substantially prejudiced and denied due process of law by the prosecutor's definition of reasonable doubt during voir dire. This issue is unpreserved, however Webb asks for palpable error review under RCr 10.26. The specific incident giving rise to this issue occurred when the prosecutor undertook the following dialogue during voir dire with a venire person (Aaron Barnhill) who eventually became the foreperson of the jury: Pros: We have to prove that Mr. Webb's guilty beyond a reasonable doubt. Everybody's probably heard that term, beyond a reasonable doubt. I know I've said it at least, or talked about, at prior trials, too. Let me ask, Mr. Barnhill, what do you think that beyond a reasonable doubt means? Barnhill: That you present evidence, whatever, that there is no question, you can't look back and think did or didn't, it's no doubt. Pros: Now do you think that means beyond all doubt? Barnhill: No, not beyond all doubt. But presented good enough case that fairly certain. Pros: Okay, so does everybody agree with Mr. Barnhill, that was a pretty good answer there, uh, what beyond a reasonable doubt, or what his definition of what beyond a reasonable doubt was? It doesn't say beyond all doubt, uh, so can everybody agree to hold me and Mr. Willis to that standard, and not something above that? Webb argues that the prosecutor's improper comments on reasonable doubt were substantially prejudicial, denying Webb his constitutional rights to due process of law and a fair trial pursuant to the 5th and 14th Amendments to the U.S. Constitution, as well as §§ 2 and 11 of the Kentucky Constitution.
Rules of Criminal Procedure.
RCr 10.26 Substantial error: "A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." --------
Kentucky law forbids either the defense attorney or the prosecutor from defining reasonable doubt, both under RCr 9.56(2): "The instructions should not attempt to define the term 'reasonable doubt,'" and as expanded under Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky. 1984): "Prospectively, trial courts shall prohibit counsel from any definition of 'reasonable doubt' at any point in the trial." This includes voir dire, opening statement, and closing argument. Id. While Callahan is clear that defining reasonable doubt is forbidden, there is decidedly more leeway toward those attorneys who approach the question of what reasonable doubt is not. The Kentucky Supreme Court has made the point that even in Callahan, the prosecutor's statements on what reasonable doubt is not, did not amount to a violation of the rule. Johnson v. Commonwealth, 184 S.W.3d 544, 549 (Ky. 2005) (citing Callahan at 392).
Other cases have illustrated that point as well. "We have held that, subject to appropriate limits, the [Callahan] rule is not offended by stating what reasonable doubt is not." Rogers v. Commonwealth, 315 S.W.3d 303, 307 (Ky. 2010) (citing Callahan at 392) (emphasis in Rogers). See also Cuzick v. Commonwealth, 276 S.W.3d 260, 267-68 (Ky. 2009) (explicitly discussing and declining to overrule Johnson). However, there have been instances where the Kentucky Supreme Court has found that touching upon reasonable doubt even in a limited fashion approaches improper behavior. See Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007). Likewise, in Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987), a prosecutor held extended discussion with a prospective juror about reasonable doubt, where the prosecutor discussed hypothetical examples of "reasonable doubt" versus "beyond a shadow of a doubt," and this behavior was deemed to violate the Callahan rule. Id. at 832-33.
Webb focuses on the statement volunteered by Mr. Barnhill, "[b]ut presented good enough case that fairly certain," along with the prosecutor's approving follow-up, in order to argue that this amounted to a substantial violation of his rights to be held to a reasonable doubt standard, and not something less. We disagree. Despite Mr. Barnhill's statement, it is clear from the prosecutor's follow-up comment that he was attempting to focus on what reasonable doubt is not: "[i]t doesn't say beyond all doubt, uh, so can everybody agree to hold me and Mr. Willis to that standard, and not something above that?" We believe this is within the bounds given by Callahan and its progeny. Furthermore, the purported error is unpreserved. Even when there may be improper behavior under Callahan, the Kentucky Supreme Court has found that it does not approach the level of manifest injustice required for palpable error. See Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007). We therefore decline to find palpable error on this issue.
The final issue on appeal is that the prosecutor made improper statements at closing argument that necessitate reversal. The prosecutor made a statement of his personal opinion or belief as to which version of Estill Stamper's story was genuine, indicating that he believed the version of the story allegedly related to Deputy Cox in the late night interview implicating Webb as the shooter. Webb objected and moved for mistrial. The circuit court sustained the objection, observing that the closing argument needed to be based on evidence and not personal beliefs, but denied the motion for a mistrial.
After this, the prosecutor then continued in a way that Webb now characterizes as misstating the evidence, although this was not preserved. The prosecutor alluded to elements that he stated were contained in the first version of the Stamper story, but were not actually presented to the jury because Deputy Cox's testimony was limited to what Stamper told him as a prior inconsistent statement. The specific statements of the prosecutor that are alleged to be improper are as follows: "His testimony was that he was at Marty Roseberry's house with Jerry Webb, that a gun was stolen, that he did not realize it would escalate to that point, and that Jerry Webb shot Marty in the leg."
The law regarding potential error in closing arguments is succinctly summarized in Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010):
Counsel has wide latitude during closing arguments. The longstanding rule is that counsel may comment on the evidence and make all legitimate inferences that can be reasonably drawn therefrom. This Court recently explained the appropriate standard of review for prosecutorial misconduct during closing arguments, stating that reversal is required only if the misconduct is 'flagrant' or if each of the following are satisfied: (1) proof of defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with sufficient admonishment. Additionally, this Court must always consider these closing arguments as a whole.Id. at 350 (internal citations and quotations omitted). To determine if misconduct is "flagrant," the Kentucky Supreme Court has instructed us to consider: "(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) superseded on other grounds by statute (internal citations and quotations omitted).
With regard to the first point, that of the prosecutor inserting his opinion, we do not believe the circuit court committed error in denying the motion for mistrial. While the prosecutor's comments were improper, the circuit court granted the objection and Webb did not call for admonition to the jury. "Failing to request an admonition is generally regarded as trial strategy, and therefore waives the issue on appeal." Luna v. Commonwealth, 460 S.W.3d 851, 876 n.52 (Ky. 2015) (citations omitted). The Kentucky Supreme Court has stated that the "decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion." St. Clair v. Commonwealth, 455 S.W.3d 869, 892 (Ky. 2015) (citing Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005). We do not believe that, in denying a motion for mistrial, the circuit court acted in a way that was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles," indicating abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "Moreover, a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a manifest necessity for such an action." Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (internal quotation omitted). The prosecutor's comments were improper, but the circuit court dealt with the matter sufficiently by sustaining the defense objection. Reversal is not indicated on this issue.
With regard to Webb's second point, that the prosecutor commented on facts not in evidence, we believe that the comments were improper, but not preserved and did not rise to the level of "flagrant misconduct." For the first Hannah factor, the comments were not overly prejudicial as they essentially duplicated parts of the narrative that were stated by others, particularly Roseberry, on the stand. For the second and third factors, while the comments were deliberate utterances, they were not extensive within the context of a twenty minute closing argument. For the last factor, considering the strength of the evidence against the accused, one must give pause. From the absence of crime scene photographs, interview transcripts, interview notes, shell casings, and so forth, there is a notable lack of physical evidence in this case. That being said, the prosecutor's stray comments in closing did not add anything of substance compared to the testimony elicited from Roseberry and Deputy Cox on the witness stand. We must also take into account the traditional stance that "[p]rosecutors enjoy considerable latitude as to the content of closing arguments," and "[r]eversal is only justified when the alleged prosecutorial misconduct is so egregious as to render the trial fundamentally unfair." Berry v. Commonwealth, 84 S.W.3d 82, 90 (Ky. App. 2001) (citing Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996)). We find no palpable error arising from flagrant misconduct in the prosecutor's closing comments.
For the foregoing reasons, we therefore affirm.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
KRAMER, CHIEF JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION. KRAMER, CHIEF JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I agree with the majority's decision in all regards except its decision regarding Webb's argument that there was insufficient proof of a "serious physical injury" pursuant to KRS 500.080(15). Certainly a gunshot wound could rise to a serious physical injury, but in my view, the actual injury that Roseberry suffered does not rise to the level of that articulated in McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013). BRIEF FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEE: Thomas A. Van De Rostyne
Frankfort, Kentucky