Opinion
NO. 2018-CA-001194-MR
01-31-2020
Markell BEDFORD, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEFS FOR APPELLANT: Karen Shuff Maurer, Frankfort, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Lauren R. Massie, Assistant Attorney General, Frankfort, Kentucky.
BRIEFS FOR APPELLANT: Karen Shuff Maurer, Frankfort, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Lauren R. Massie, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; L. THOMPSON, JUDGE; AND BUCKINGHAM, SPECIAL JUDGE.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(2)(b) of the Kentucky Constitution.
OPINION
BUCKINGHAM, SPECIAL JUDGE:
Markell Bedford appeals from the Fayette Circuit Court's final judgment wherein he was sentenced to a term of 10 years’ imprisonment for complicity to robbery in the first degree and to 12 months for assault in the fourth degree following a jury trial. We affirm.
Sometime after midnight on May 30, 2016, Bedford, who was 16 years old at the time, and several other individuals, all of whom were also under 18 years of age and at least some of whom were drinking or consuming drugs, attempted to rob Deonte Turner, who had driven a van to the Pinewood Apartment complex in Lexington to drop off Alisha Mills, a friend of Mackenzie Burnette, one of those who participated in the robbery. The plan to rob Turner was apparently hatched by Burnette, age 14.
When Turner arrived and dropped Mills off, Bedford, James Holbrook, and Angel Medrano approached the vehicle and began hitting Oliver Gill, who was also in the van. There was also testimony that Jerron "Drew" Franklin was one of those approaching the vehicle. At some point, a gun went off, and everyone scattered. Gill had been shot through his left arm and into the wall of his chest. Turner drove Gill to the hospital, and Gill was treated and released after several hours.
Mills, Burnette, Medrano, Bedford, and Holbrook, all of whom were under 18 years of age, were charged as adults in connection with the incident. All co-defendants except Bedford and Holbrook pled guilty to facilitation to first-degree robbery. These co-defendants were given five-year sentences contingent upon their testimony at the trial of Bedford and Holbrook, who were tried jointly by a jury.
The jury found both Bedford and Holbrook guilty of complicity to robbery in the first degree and assault in the fourth degree. The trial court sentenced each of them to 10 years in prison on the robbery charge and 12 months in jail on the assault charge in accordance with the jury's verdicts. Their separate appeals followed. Bedford has raised three arguments, each of which will be addressed herein. JURY FATIGUE
Bedford's first argument is that the trial court abused its discretion in requiring the jury to finish the trial on its last day rather than allowing it to return the following day for its deliberations. The final day of the three-day trial began at approximately 8:30 a.m., and the presentation of evidence was finished shortly after 4:00 p.m.
Due to an extensive delay in preparing the jury instructions, the trial was delayed until 10:30 p.m. when the court finally instructed the jury on the law of the case. The jury remained in the building during this entire time.
Following the reading of the instructions and the closing arguments of the attorneys, at 12:55 a.m. the jury retired to deliberate. Counsel for Holbrook requested the court to allow the jury to go home for the evening, but the court declined to do so. The jury returned its verdicts shortly after 3:00 a.m.
At this point the trial court asked the jury whether it would like to break for the night and return the following day to proceed with the penalty phase of the trial. While one juror protested verbally, another juror stated she had to leave on a flight the next day. The remaining jurors voiced no objection, and the court continued with the penalty phase that night. The jury finally returned its verdict in the penalty phase at approximately 4:42 a.m. and was discharged.
The jury set the sentence of each defendant, Bedford and Holbrook, at the minimum, 10 years in prison for the robbery charge.
Bedford argues that requiring the jury to stay and conclude the trial by spending 20 hours on the third and last day of the trial was reversible error, in that it left the fate of a young man who was 16 years old at the time of the incident in the hands of jurors who were undoubtedly sleepy and tired from their service.
The Commonwealth first contends that Bedford did not preserve error concerning this issue and that palpable error under RCr 10.26 has not been raised. It argues that Bedford's attorney never expressly objected to the court's decision not to adjourn for the evening but only expressed concern about the court not doing so. While counsel never expressly objected to the court's decision, it clearly stated its position was that the court should discharge the jury until the following day. We conclude any error in this regard was preserved.
Kentucky Rules of Criminal Procedure.
Kentucky appellate courts have not often addressed this issue, especially in published opinions. In Tarrence v. Commonwealth , 265 S.W.2d 40 (Ky. 1953), superseded by statute on other grounds as stated in Spears v. Commonwealth , 30 S.W.3d 152, 154-55 (Ky. 2000), our Supreme Court held as follows:
[I]t strikes us that where a jury has gone through an all-day trial, keeping or permitting them to continue their deliberations practically all night without interruption might result in an unjust verdict from tired minds. But it is manifest from the record that this was the express preference of the jury and there was no objection.
Id. at 52. In that case the jury was given the case for deliberation at 10:45 p.m. and returned its verdict at 4:35 a.m. Id.
In Beckner v. Commonwealth , No. 2005-CA-001616-MR, 2007 WL 778632 (Ky. App. Mar. 16, 2007), an unpublished case, this Court held as follows:
Ordinarily the length of time a jury may be kept together for deliberation is a matter for the sound discretion of the trial court. Mills v. Tinsley , 314 F.2d 311, 313 (10th Cir. 1963), cert. denied , 374 U.S. 847, 83 S.Ct. 1907, 10 L.Ed.2d 1067 (1963). Whether that discretion has been abused is determined by viewing the totality of the circumstances. United States v. Coast of Maine Lobster Co. , 557 F.2d 905 (1st Cir. 1977), cert. denied , 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977).
Id. at *4.
We cannot say the trial court erred or abused its discretion in continuing with the trial rather than adjourning until the next day. The jury had been advised that the trial would last three days, and at least one juror had flight plans for the following day. The jury was consulted, and no objection was made. The court inferred, and properly so, that the jury wished to continue with the trial until completion. See Tarrence , supra.
PHOTOGRAPH OF ALLEGED ALTERNATIVE PERPETRATOR
Mackenzie Burnette and Alisha Mills both testified that Drew Franklin, an individual who was not charged in connection with the incident, had discussed the planned robbery with the others. Burnette said she heard Franklin's voice during the altercation and that he was beside the vehicle at that time. Mills testified that Franklin was one of those who agreed to participate in the robbery. Mills stated that she could identify Franklin if she were shown a photograph of him.
Bedford's attorney attempted to introduce a mugshot or Facebook photo of Franklin to demonstrate that Franklin matched the description of the perpetrator given by Turner and Gill. The trial court denied the attempt to introduce the photograph of Franklin on the grounds that several witnesses had already testified to the similar appearances of Franklin and Bedford, that both were present during the altercation, and that Franklin had participated in the attack.
The standard of review for admission of evidence is whether the trial court abused its discretion. Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id.
Our Supreme Court has held "[t]he Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the opportunity to present a full defense, and that guarantee includes the right to introduce evidence that an alternate perpetrator committed the offense." Gray v. Commonwealth , 480 S.W.3d 253, 266 (Ky. 2016) (footnote omitted). Such right "does not, however, abrogate the rules of evidence." McPherson v. Commonwealth , 360 S.W.3d 207, 214 (Ky. 2012).
We agree with the Commonwealth that there was plenty of evidence in the record of the similar appearances of Bedford and Franklin and of Franklin's participation in the crime. Thus, we decline to hold that the trial court abused its discretion in disallowing the evidence as it was cumulative. KRE 403. Furthermore, while Bedford sought to persuade the jury that Franklin was the perpetrator, it is significant that the jury did not find Bedford guilty of being the perpetrator but found him guilty of complicity. CROSS-EXAMINATION OF GAUGE MCNETT
Kentucky Rules of Evidence.
--------
Gauge McNett was Burnette's boyfriend, and he was about 19 years old at the time of the crime. Although McNett was present when the others discussed robbing Turner, he was not charged in connection with the incident. Later, however, McNett was placed on pretrial diversion due to having pled guilty to receiving stolen property involving a crime that had occurred over a year after this incident.
McNett testified at trial and implicated Bedford, but the trial court refused to allow Bedford's counsel to cross-examine him concerning his pretrial diversion status. Bedford contends that the trial court erred in not allowing the testimony to "show bias toward the Commonwealth and that he was currying favor with them." In support of his testimony, Bedford cites Futrell v. Commonwealth , 471 S.W.3d 258 (Ky. 2015). In that case our Supreme Court held that it was error for the trial court to have disallowed the defendant from cross-examining a witness concerning the fact that he was on pretrial diversion and that such agreement was subject to revocation. Id. at 286-87.
In Holt v. Commonwealth , 250 S.W.3d 647 (Ky. 2008), our Supreme Court held that the fact that the victim of a sex offense was on pretrial diversion for complicity to traffic in marijuana was not probative evidence of bias because "mere participation in a pretrial diversion program, absent any further showing upon which to infer bias, is an insufficient basis for impeachment." Id. at 653 ; see also Davenport v. Commonwealth , 177 S.W.3d 763, 769 (Ky. 2005).
Here, McNett was apparently not a suspect and was not charged in connection with the robbery of Turner. The crime he allegedly committed occurred a year or so after this incident and was totally unrelated. Further, there was nothing to indicate McNett had received any leniency in that case for his testimony in this case nor was there any indication that McNett had violated his diversion or was otherwise in danger of having it revoked. In short, there was nothing to indicate that McNett's testimony was influenced or that he had a bias favoring the Commonwealth merely because he was on pretrial diversion in another case.
Under these circumstances, we conclude the trial court did not abuse its discretion in disallowing the cross-examination of McNett concerning his pretrial diversion status. The facts here are more akin to those in Davenport and Holt than those in Futrell . In Futrell the witness's pretrial diversion agreement was subject to revocation. 471 S.W.3d at 286-87. In this case there was no such evidence concerning McNett's agreement.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.