Opinion
NO. 2010-CA-002221-MR
07-13-2012
JASON ST. CLAIR WILSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 09-CR-00071
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND TAYLOR, JUDGES. CAPERTON, JUDGE: The Appellant, Jason St. Clair Wilson, appeals the November 17, 2010, judgment and sentence of the Scott County Circuit Court convicting him, following a jury trial, on one count of attempted manslaughter, two counts of assault under extreme emotional disturbance, and five counts of wanton endangerment, for which he was sentenced to a total of ten years of imprisonment. On appeal, Wilson challenges the sufficiency of the evidence, and raises issues concerning alleged denial of confrontation and cross-examination. Following a review of the record, the arguments of the parties, and the applicable law, we affirm.
Stephanie and Jason began dating in June of 2003, and he began residing with her in Georgetown in March of 2004. They parented three children - each of whom had the initials J.W. Subsequently, their relationship failed and in February of 2009, Stephanie and the three children moved out of the residence they shared with Jason and into a new residence in Georgetown. Nevertheless, Stephanie continued to have intimate relations with Jason and also developed an intimate relationship with William Lee, who was a relative of her half-sister Tiffany Clark's boyfriend, Darryl Brown.
For purposes of this opinion, we refer to the children interchangeably and collectively as J.W. because the same facts are applicable to all.
On March 17, 2009, Jason drove to Stephanie's home with a semi-automatic pistol and opened fire while eight people were present in her home. Bullets struck three of the individuals, causing various injuries. The Commonwealth charged Jason with wantonly endangering five other individuals, four of whom were children.
These individuals were Jason's former girlfriend, Stephanie; her half-sister, Tiffany; Tiffany's boyfriend, Darryl, and their son; Stephanie's paramour, William Lee; and Stephanie's and Jason's three children, J.W., J.W., and J.W.
Earlier that day, following a birthday party held at William's mother's home for his daughter, Jason went to Stephanie's residence and began to knock loudly on a side door, and then on a window. According to Jason, Stephanie had told him that she would bring the children to visit him after the party and had not done so. Jason states that he drove to Lexington to look for Stephanie because he became concerned as to her whereabouts. At one point, Jason called his mother, Darlene Wilson, to advise her that he had seen Darryl and William through the blinds, and that he didn't want them around his children and was going to "deal with it." In response, his mother advised him "to get away from there." Upon hearing this, Jason's father, St. Clair Wilson, drove to Stephanie's house to "get him away from there."
The testimony below seems somewhat conflicting as to how Jason actually entered the premises. According to the Commonwealth, while Jason was knocking on the doors and windows, Stephanie announced to the other individuals inside the house that it was Jason who was doing the knocking, and that they were not to answer the door. Jason then pushed the door down and entered the house. Jason, on the other hand, asserts that Stephanie opened the front door for him, but that William then slammed the door shut. Jason states that at that point, he gave the door two "shoulder shrugs," which resulted in severe damage to the door.
Regardless, when Jason entered the home, most of the individuals were in Stephanie's bedroom. Two of the children were lying on the couch at that time. A fight erupted between Jason and William, who were soon joined by Darryl. Jason states that during the fight both William and Darryl were attacking him, and that he didn't fight back. He also asserts that during the fight, Darryl pulled out a knife while Stephanie attempted to intervene. Jason eventually freed himself from the fight and walked outside. While outside, he went to his vehicle and retrieved a black pistol, leaving the door of his SUV open. Jason asserts that he took the gun back inside because he had left his car keys and phone in the house and wanted to retrieve them without being harmed.
When Jason returned to the house, all of the individuals inside came to the front room. Jason asserts that upon re-entering the home, William began threatening him, and eventually "came at him." Jason attempted to shoot William by pointing the gun at him and pulling the trigger, but the gun did not fire on the first two attempts because the safety feature was engaged. Before the first shot was actually fired, Tiffany took the four children into a closet inside Stephanie's bedroom, but by the time Jason began shooting shortly thereafter, the children had returned to the room with Tiffany following behind them.
At one point during this fracas, Stephanie attempted to stop Jason by lying on top of him while William and Darryl unsuccessfully wrestled for control of the gun. Darryl then ran into a bedroom and William into the hallway. Stephanie continued to try to get Jason to stop shooting, but was unsuccessful. Jason kicked in the bedroom door, found Darryl sitting in the bathroom closet and shot him in the face. Jason testified that he was afraid that Darryl had a weapon, and was going to hurt him. While Stephanie tried to block the bedroom door, Jason shot her in the lower left abdomen, which he asserts was an accident. Jason then fired into the bathroom, and a bullet struck William.
Shortly afterwards, Jason's father, St. Clair, arrived at the home and took the gun from Jason. Someone called 911 from a cell phone but hung up. Nevertheless, the police equipment was able to trace the general location of the call. Officer Shane Marcum reported to the vicinity of the call, but could not immediately identify the home from which the call was made. Then, at about 11:53 p.m., someone again dialed 911 and reported that a black male, with his hair in dreadlocks, had shot a black female at 102 King George Drive. Officer Marcum soon discovered that Jason had shot multiple individuals, and several other police officers were called to the scene.
Upon his arrival, Officer Marcum observed a man fitting Jason's description exit the home through an open window. Jason also saw the officers and attempted to run away, but was intercepted and detained. Officers ordered him to the ground, and Officers Joe Payton and Rickey Lusk handcuffed him. Officer Marcum then observed another black male, later identified as St. Clair, carrying a gun in his right hand. Not knowing who had shot the victims, Officer Marcum announced that he had a gun and attempted to apprehend St. Clair, who tried to conceal himself behind a doorway.
As officers approached the doorway, St. Clair initially claimed that he did not have a weapon, but defied officers who ordered him to show his hands. Officer Peyton then arrested St. Clair, who violently resisted and was only brought under control after being tasered by Officer Marcum. Officer Marcum subsequently found the weapon, which was loaded with a cartridge and a bullet in its chamber, just to the left of the doorway where St. Clair had been standing. Officer Marcum then observed another black male, later identified as Darryl, who was covered in blood.
At approximately the same time, Officer Greg Gibson observed the open door of Jason's SUV, which was parked in an alleyway next to the house. Inside the vehicle was a nylon holster. Meanwhile, Officer Steve Furrow observed approximately four children inside the home and asked if anyone was hurt. A female, later identified as Stephanie, raised her shirt to reveal her wound. Officer Furrow also observed that Darryl was lying on the floor and had been shot in the mouth. Officer Peyton also reported to the scene and observed a knife on the living room floor. Officer Peyton found William hiding inside the closet adjacent to the bathroom.
Detective Moore photographed and videoed the scene as it appeared when the police arrived. Detective Moore collected a knife from the floor, and found an undischarged bullet in front of the door. He photographed damage to the front door, indicating that it had been forced open. Detective Moore also photographed a Walther P22 semi-automatic pistol and a magazine containing one round lying on the floor of the living room.
John Higgin, a paramedic with Georgetown-Scott County Emergency Medical Services also reported to the scene. He found Stephanie in a bedroom and observed that she had been shot in the left lower abdomen. Emergency personnel transported her to the University of Kentucky Medical Center. Darryl, treated by paramedic Brandon Remley, was also transported to the University of Kentucky Medical Center.
Police decided to transport Jason to the Georgetown Community Hospital for an evaluation, and Officer Marcum accompanied him in the ambulance. While being transported, Jason attempted to make statements about why he had shot the victims. Officer Marcum advised Jason of his Miranda rights, and that he should make statements to the officer who would be investigating the case. Nevertheless, Jason persisted in claiming that he had shot the individuals in self-defense after they attacked him.
Following an evaluation at the hospital where it was determined that he had no serious injuries, Jason was transported to the Georgetown Police Department between approximately 3 and 4 a.m. The interview, which was recorded and played to the jury, contained Jason's admission that he had "barged down" the door. Jason stated that once he was inside, William and Darryl began beating him, after which he left the residence to retrieve his pistol. Jason also stated that while pursuing Darryl, he had "busted that door down," and burst into the bedroom to shoot Darryl.
Subsequently, at trial, Jason claimed that he never kicked the door, but instead used his shoulder to force it open.
On June 5, 2009, the Scott County Grand Jury indicted Jason, charging him with burglary in the first degree, criminal attempt to commit murder, two counts of assault in the first degree, and five counts of wanton endangerment in the first degree. A four-day trial was held below.
With respect to William Lee.
Concerning Stephanie Buchanan and Darryl Brown.
With regard to Tiffany Clark, and the four children - Wilson's three children and Tiffany's son.
During the course of the trial, Jason's father, St. Clair Wilson, testified. St. Clair testified that on some unidentified day prior to the shooting, he drove to Stephanie's residence to pick up two of the grandchildren, and upon arriving at the house, St. Clair noticed that both Darryl and William were present. St. Clair testified that they "stared him down" as he was leaving and, without provocation, Darryl shouted an expletive at him. Jason later learned of this incident and believed that Darryl and William had insulted his father.
Stephanie also testified on Jason's behalf. Stephanie claimed that the two were engaged, although Jason disagreed in his own testimony. Moreover, she testified that she voluntarily let Jason come into the house, and that she did not know how the door became damaged. She admitted that she lied to Jason when she told him that she was not seeing anyone else when, in fact, she was. Finally, despite the fact that she had been shot in the pelvis, Stephanie testified that the gun discharged while she, William, and Darryl were struggling with the gun, and that any one of them might have pulled the trigger. Jason disagreed with Stephanie's version of the story.
Jason testified on his own behalf, stating that he drove to Stephanie's house on the night in question because she had not called about bringing two of the children to him. Jason also testified that he was concerned that Stephanie had been keeping company with William and Darryl and that he did not want his children around them. Jason stated that he continued to knock in order to demand an explanation from Stephanie for not having brought the children to him that day. Jason denied kicking the door, but testified that he did damage it with his shoulder. He stated that William and Darryl then began to fight him, and that someone obtained a knife.
Below, the trial court allowed Jason to testify to his belief that the two men were involved in drugs in order to establish his state of mind before the jury, including his recounting of a day that he was driving through a bad Lexington neighborhood and saw two men on a corner attempting to flag him down. Upon pulling over, Jason recognized William and Darryl, both of whom admitted to being involved in drug trafficking at that time.
Jason stated that he left the residence after the fight to go to his SUV and leave, but that he could not leave because he had left his cell phone and keys inside the home. Accordingly, Jason decided to return to the home and take the pistol for protection. Jason claimed that upon re-entering the house, William approached him while jeering and cursing. Jason then pointed the gun at William and attempted to shoot, but the pistol did not fire. When the gun ultimately did shoot, Jason testified that his first shot was to stop William from approaching him. Jason testified that he ultimately shot William and Darryl in self-defense, but shot Stephanie accidentally.
Below, the Commonwealth introduced the medical records of both Stephanie and Darryl for the purpose of proving the seriousness of their injuries. Jason's counsel did not object, nor contest the seriousness of the injuries.
Following the presentation of evidence, the jury acquitted Jason of burglary, but found him guilty of criminal attempt to commit manslaughter in the first degree, two counts of assault under extreme emotional disturbance, and five counts of wanton endangerment in the first degree. Jason waived jury sentencing and accepted the prosecutor's offer of ten years of imprisonment. On November 17, 2010, the Scott Circuit Court entered judgment against Jason, sentencing him to imprisonment for a total of ten years. He now appeals to this Court.
On appeal, Jason argues that: (1) the court below erred in denying his motion for directed verdict on all five counts of wanton endangerment; (2) the court below erred in denying his motion for directed verdict on the assault under extreme emotional disturbance charge; (3) the court erred in refusing to allow Jason to confront and cross-examine Tiffany regarding her motives for testifying; (4) the court erred in denying Jason's motion for directed verdict on both the attempted manslaughter of William and assault under extreme emotional disturbance of Darryl; and (5) that the court erred in refusing to credit Jason with 36 days of time served in custody under the Home Incarceration Program (HIP). For purposes of clarity, we will address all arguments concerning directed verdicts first, and then turn to the remaining arguments raised by the parties.
In addressing the directed verdict issue, we note that upon review of the evidence supporting a judgment entered upon a jury verdict, the role of this Court is limited to determining whether or not the trial court erred in failing to grant the motion for directed verdict. In so doing, all evidence which favors the prevailing party must be accepted as true, and the reviewing court is not at liberty to determine the credibility or weight which should be given to the evidence. Those functions are reserved to the trier of fact. See Kentucky and Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, 247 S.W.2d 228 (Ky. 1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence and, upon completion of the evidentiary review, the appellate court must determine whether the verdict rendered was palpably or flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice. NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988). If the reviewing court concludes that such is the case, it may reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, it must affirm. We review this issue with these standards in mind.
First, Jason argues that a directed verdict should have been granted on all five counts of wanton endangerment. Jason asserts that there was insufficient proof as to his state of mind to support a conviction, particularly that he showed extreme indifference to human life. He also argues that there was insufficient proof below to establish that he created a substantial danger or unjustifiable risk to any of the alleged victims. Jason argues that the evidence overwhelmingly established that his intent in firing all of the shots was self-defense. He argues that his state of mind was not extreme indifference, but rather a focus on saving his own life.
Concerning his actual actions, Jason argues that he never pointed the gun at Tiffany, or at any of the children, and that none of the individuals were in the bathroom when he fired into that area. He denies ever shooting blindly into any space in the house, and that neither Tiffany nor any of the children were ever in a "risk area" while he was shooting.
In making these arguments, Jason concedes that the shot fired at Darryl in the hall or bedroom warrants "more attention" because the children and Tiffany were nearby when he fired that shot. Nevertheless, he argues that this shot was fired from only a foot away, and that Jason, who was "army-trained" in the use of firearms, could not have missed from this range. Accordingly, Jason argues that no one but Darryl could have been hurt by this shot and that there was insufficient evidence to establish where Tiffany or any of the children were located at the time Darryl was shot and that, accordingly, there was insufficient evidence to establish a "substantial risk" to Tiffany and the children as a result of his behavior. On this basis, Jason argues that the court erred in denying his motion for directed verdict on all five counts of wanton endangerment because no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jason also argues that the court erred in denying his motion for directed verdict concerning the charge of assault under extreme emotional disturbance against Stephanie. Jason argues that there was inadequate proof that he intended to shoot Stephanie. He asserts that Stephanie and Tiffany were the only other witnesses to the shooting, and both agreed in their testimony that it was unintentional and an accident. He argues that there was no circumstantial evidence apart from a possible motive. Jason argues that the jury's conviction on this issue would at best be based only on speculation. Accordingly, he argues that the court erred in denying his motion for directed verdict on this issue.
Namely, Stephanie's betrayal of Jason.
Finally, Jason argues that the court below should have granted a directed verdict regarding both the attempted manslaughter of William and the charge of assault under extreme emotional disturbance on Darryl because the Commonwealth failed to negate self-defense. Jason alleges that Darryl and William initiated the fighting that occurred, and that he believed he was in imminent threat of death or serious physical injury. He argues that he had a right to re-enter the house openly carrying a gun because he believed that he would be attacked again. Moreover, he asserts that he was justified in trying to shoot William in self-defense because he reasonably believed William was armed. Jason notes that William had already pulled out a knife and that it was reasonable to continue his attempts to defend himself by shooting at both Darryl and William. Jason argues that the Commonwealth failed to prove that he actually intended to kill William, rather than simply to stop him from posing a threat. He argues that from the range he was shooting, he easily could have killed either William or Darryl, and chose not to. Thus, he argues that the court erred in denying his motion for directed verdict on these charges.
In response, the Commonwealth argues that the court below properly denied Jason's motions for directed verdict, and that its decision to do so was clearly supported by the evidence. We agree. Concerning the five charges of wanton endangerment in the first degree, we note that Tiffany clearly testified that she and the children had left the closet in which they were sheltered by the time Jason began shooting. Accordingly, we believe the court below was correct in finding evidence sufficient to overrule the motion for directed verdict.
The Commonwealth makes the argument that Jason's argument on appeal raises a new issue, namely whether there was sufficient evidence of a wanton mental state, which was not raised below. The Commonwealth argues that below, Jason only raised the issue of whether Tiffany or any of the children were in the line of fire. Believing these two issues to be linked, and finding sufficient evidence to indicate a wanton state of mind as discussed herein infra, we decline to further address this portion of the issue.
Kentucky Revised Statutes (KRS) 508.060 provides, in pertinent part, that:
A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person."Wantonly" is defined by KRS 501.020(3), which states that:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.There is no question that Jason knew the children and multiple other individuals were inside the home when he fired the gun, and fired it repeatedly. Jason argues that no one knew exactly where in the bedroom Tiffany and the children were when the shots were fired. In the opinion of this Court, this information only serves to further support the determination of the court below that Jason acted wantonly in firing multiple shots without any regard to, or knowledge of, the whereabouts of children in the room. Certainly, we believe that this evidence alone serves as an adequate evidentiary basis for the court below to conclude that a conscious disregard for a substantial and unjustifiable risk existed. Moreover, our courts have repeatedly held that shooting a gun into an occupied house constitutes wanton endangerment. See Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010); and West v. Commonwealth, 161 S.W.3d 331 (Ky.App. 2004).
Concerning the court's denial of the motion for directed verdict on the assault charge, we again find this decision to be supported by substantial evidence. Assault under extreme emotional disturbance is a mitigation crime. KRS 508.040 states, in pertinent part that:
As with the wanton endangerment issue, the Commonwealth argues that this issue is also unpreserved. The Commonwealth asserts that the issue raised on appeal is different from the issue raised at trial, insofar as below, he raised the issue of whether the Commonwealth had proven the severity of the offense as to Darryl, whereas he now argues that there was inadequate proof of his intention to shoot Stephanie. Jason argues that the issue was preserved since the Commonwealth specifically raised intent on this issue by asking the court to deny directed verdict based on proof of Jason's intent either to shoot Stephanie or to shoot William, thereby accidentally shooting Stephanie. We agree. The court below had an opportunity to consider this portion of the issue, and we believe this to be sufficient preservation for our review.
In any prosecution under KRS 508.010, 508.020, or 508.030, in which intentionally causing physical injury orBelow, the jury instruction pertinent to this issue stated, in pertinent part, as follows:
serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.
That on or about March 17, 2009, in Scott County, Kentucky, and before the finding of the Indictment here, he shot Stephanie Buchanan in the pelvis with a .22 caliber pistol.Below, we believe that sufficient evidence was introduced to establish that Jason was in pursuit of William and that, during the course of that pursuit, shot Stephanie. Under both the statutory provision and the jury instruction above, we believe this evidence to be of a nature substantial enough to support the court's decision to deny Jason's motion for directed verdict on this issue. Accordingly, we affirm.
AND
That in so doing:
(1)(a)He intentionally caused physical injury to Stephanie Buchanan; OR
(b)He intended to cause physical injury to William Lee, but actually caused physical injury to Stephanie Buchanan.
Finally, we address Jason's assertion that the court erred in denying his motion for directed verdict with respect to the charges of attempted manslaughter of William and assault under extreme emotional disturbance of Darryl. Jason argues that there was no proof of the intent to commit murder, and that all of the evidence established that he was acting in self-defense. We disagree. The elements of self-defense are set forth in KRS 503.050, which states, in pertinent part, as follows:
(1)The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by another person; and
(2)The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 . . . .
Jason argues that he had a right to re-enter the house, openly carrying a gun, in order to retrieve his keys and cell phone, because he reasonably believed that he would again be attacked by William and Darryl. While that may have certainly been an understandable concern, Jason could have chosen not to re-enter the home at all. Upon removing himself from the fight, the "imminent" threat of danger subsided. Moreover, it was Tiffany's testimony that Jason re-entered the home and began shooting at William and that, subsequently, the bullets struck William, Darryl, and Stephanie.
While there was conflicting evidence as to exactly what ensued during the second violent encounter of the evening, it was for the jury to consider the evidence and choose to rely upon that which it found most credible. See Stafford v. Commonwealth, 490 S.W.2d 738 (Ky. 1973). Below, the jury clearly found Tiffany's description to be more credible than Jason's, and chose to believe that he left the house, returned with a gun, and began shooting at other individuals. This was well within the province of the jury and, accordingly, the court below did not err in denying the motion for directed verdict. We affirm.
Beyond his arguments that the court erred in denying his motions for directed verdict, Jason argues that the court erred by refusing to allow Jason to confront and cross-examine Tiffany regarding her motive to testify in accord with her unsworn statement to police in order to be released from jail. Jason states that upon being called and subpoenaed to testify by the Commonwealth, Tiffany initially failed to appear, and was arrested on a material witness warrant. The court held Tiffany overnight in jail prior to her testimony, and apparently advised her that she would stay until she finished testifying. Jason's counsel sought to cross-examine Tiffany regarding her night in jail to bring out any bias or motive she may have harbored that would influence her to testify consistently with her statement and favorably for the prosecution in order to be allowed to go home.
At the conclusion of the prosecutor's direct examination of Tiffany, Jason's counsel approached the bench and advised the court that he wanted to pursue questioning Tiffany about her failure to appear, and the implication that she was biased in favor of the Commonwealth. The prosecutor responded that her arrest was not relevant and that her arrest would not indicate bias in favor of either party. The trial judge stated that it was the court which ordered Tiffany to be arrested, not the Commonwealth, and that because it was not a prosecutorial decision, the court did not see how the arrest could cause bias against Jason. Jason's counsel nevertheless stated that he wanted to explore whether she was biased. The court responded that counsel had not laid an adequate foundation. Counsel proceeded to cross-examine Tiffany, but was unable to establish a basis for bias during her trial testimony. He completed her cross-examination by avowal.
Outside of the presence of the jury, during the course of her testimony by avowal, Tiffany stated that she knew that in order to go home, she had to testify "like I signed the papers," or in accordance with her prior unsworn statement. When asked if her testimony had to be "like the statement you wrote out that night," Tiffany said, "Yes, sir." Jason argues that this was relevant to Tiffany's credibility, and the court's failure to allow the defense to use this evidence to cross-examine Tiffany denied Jason the right to cross-examination and to confront witnesses against him.
CD 2, 03/23/2010, 8:56:90-8:57:43.
In response, the Commonwealth argues that the trial court properly refused to permit Jason to cross-examine Tiffany as to her night in jail. In support of that assertion, the Commonwealth argues that Jason failed to establish a foundation as to how Tiffany's arrest and detention may have caused bias against him. Accordingly, the Commonwealth urges this Court to affirm the holding of the court below.
In reviewing the arguments of the parties on this issue, we note that questions of admitting or excluding evidence are reviewed under the abuse of discretion standard. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Having reviewed the record, including the responses given to counsel by Tiffany during avowal, we are not persuaded that counsel established an adequate foundation for the introduction of the testimony at issue. Accordingly, we affirm. While Tiffany did testify as to an understanding that she needed to testify consistently with the information provided in the statement made the night of the incident, our law concerning the admission of prior consistent statements is clear. KRE 801A(a)(2) provides that a prior consistent statement may be admitted only to rebut an express or implied charge against the declarant of recent fabrication, or improper influence or motive.
In affirming, we note briefly that the rule to which Jason has directed our attention in his brief is an incorrect basis for seeking admission of the testimony at issue. Indeed, we note that Jason did not need the prior statement itself on cross-examination and, in fact, only needed to show that the witness would testify consistently with the statement to be released from jail, regardless of what the truth would be, and that the statement was not the truth. A more adequate foundation would have been one laid pursuant to Kentucky Rules of Evidence (KRE) 104(e), asserting bias or prejudice as a result of witness detention. Certainly, had Tiffany testified as to the factual content of the statement, and had that content been challenged, admission of the prior consistent statement pursuant to KRE 801A(a)(2) to rebut such a charge would have been appropriate.
Below, we believe that the court was correct in its determination that no foundation was laid to establish that Tiffany had any improper motive, had been improperly influenced, or had fabricated her statements. We believe that a charge of recent fabrication can be summarily dismissed because her testimony was to be consistent with her prior statement. Similarly, a charge of improper motive or improper influence is tenuous at best. Accordingly, we affirm.
As his final basis for appeal, Jason argues that the court below erred in refusing to give him a credit for 36 days of time served in custody under the Home Incarceration program. On February 6, 2010, the court ordered that Jason be released on home incarceration (HIP) pursuant to KRS 431.517 and KRS 532.200. On February 18, 2009, he was released after posting $2,525.00. Jason remained in HIP for 36 days until March 26, 2010. Following his conviction, he returned to jail. At the sentencing hearing on May 14, 2010, the court granted 388 days of credit for time served, but stated that it would not award credit for time served under HIP. Jason now argues that this was error, and that though he was at home, he was still "in custody," and could have been charged with escape had he violated the terms of that program. Accordingly, Jason argues that he should be credited for 36 days of time served in HIP.
In response, the Commonwealth argues first that this issue was unpreserved, and secondly, that there is no authority for holding that time spent in home incarceration while released on a bail bond, prior to conviction, must be credited toward a defendant's sentence of imprisonment.
We agree with the Commonwealth and Jason himself concedes that this issue was not preserved below. However, our courts have clearly held that sentencing issues are reviewable upon appeal despite the fact that they are unpreserved. Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007), and Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985).
In addressing the merits of this issue, we note that during the sentencing hearing, Jason's own counsel stated a belief that the statute did not permit sentencing credit for home incarceration. We believe this statement to accurately reflect the law of the Commonwealth as it presently stands. In Buford v. Commonwealth, 58 S.W.3d 490, 491 (Ky.App. 2001), this Court ruled that jail-time credit is not allowed for time spent in home incarceration where it is ordered as a form of pretrial release. To this end, we acknowledge that our Kentucky Supreme Court in Weaver v. Commonwealth, 156 S.W.3d 270 (Ky. 2005), held that home incarceration imposed as a condition of pretrial release is a form of custody for purposes of the escape statute, and should count toward pretrial custody credit. Jason directs the attention of this Court to that holding, and asserts that, like Weaver, he was not "released on bail" while participating in home incarceration. We disagree.
In Tindell v. Commonwealth, 244 S.W.3d 126, 128 (Ky.App. 2008), this Court elaborated upon the distinctions between Buford and Weaver, and stated as follows:
Tindell maintains that the reasoning behind Buford has been undermined by the more recent opinion in Weaver v. Commonwealth, 156 S.W.3d 270 (Ky. 2005). In Weaver, the Kentucky Supreme Court held that home incarceration imposed as a condition of pretrial release is a form of custody for purposes of the escape statute. Consequently, the Court found that a person who violates the conditions of home incarceration may be subject to prosecution under KRS 520.030. Id. at 271-72. See also Stroud v. Commonwealth, 922 S.W.2d 382, 384 (Ky. 1996). Since pretrial home incarceration is a form of
custody, Tindell argues that he is entitled to credit for that time.
While the holdings in Weaver and Buford appear to be contradictory, the facts of Tindell's case are clearly distinguishable from those in Weaver. In Weaver, the defendant was not actually released on bail, but was released to the home incarceration program instead of being released on bail. The Supreme Court noted that KRS 27A.360 creates a distinction between release on bail and release on any other form of pretrial release. The Court also pointed out that KRS 431.517 authorized home incarceration as a form of pretrial release subject to the conditions imposed by the provisions of KRS 532.200 to 532.250. Moreover, KRS 532.220(2) specifies that a person who violates the terms of home incarceration may be subject to prosecution for escape. Thus, the Court in Weaver concluded that, where home incarceration is imposed as a form of pretrial release in lieu of bail, a defendant who violates home incarceration is subject to prosecution under KRS 520.030. Weaver, 156 S.W.3d at 271-72.
Unlike in Weaver, Tindell was released on bail. The trial court imposed "house arrest" as an additional condition of his release on bail. While the distinction makes little practical difference from Tindell's perspective, the General Assembly's intent to draw such a distinction is clear from the applicable statutes. Id. Under the circumstances, Tindell was not entitled to credit for the time which he spent on pretrial home incarceration.
Jason concedes that he was released to HIP after having "posted bond," yet argues that he had not been "released on bail." We find this to be a distinction without a difference and note that the Kentucky Revised Statutes and Kentucky Rules of Criminal Procedure use the terms "bail," "bond," and "bail-bond" interchangeably. Clearly, the record contains reference to a "bail bond." According to the law of the Commonwealth as set forth herein above, this is determinative of whether Jason was entitled to credit for the time he spent in HIP. The court below correctly determined that he was not, and we affirm.
T.R., Vol. 1, p. 86.
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Wherefore, for the foregoing reasons, we hereby affirm the November 17, 2010, judgment and sentence of the Scott County Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky