Opinion
NO. 2011-CA-001983-MR
03-14-2014
ADRIAN BENTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 06-CR-01043-001
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. NICKELL, JUDGE: Adrian Benton appeals the Fayette Circuit Court's imposition of a ten-year sentence of imprisonment following a jury trial at which he was convicted on a charge of possession of a handgun by a convicted felon. Following a careful review of the record, the briefs and the law, we affirm.
Kentucky Revised Statutes (KRS) 527.040, a Class C felony.
Benton was charged with multiple felonies after he and a cohort embarked upon a crime spree on May 25, 2006. For trial purposes, the possession of a handgun charge was severed from the remaining counts. At his first trial, Benton was convicted of nine felonies and found to be a persistent felony offender in the second degree. He received a sentence of forty-four years' imprisonment, and his convictions and sentence were affirmed on direct appeal.
These felonies included complicity to manslaughter, complicity to robbery, robbery, assault, and wanton endangerment.
Benton v. Commonwealth, 2011-SC-000411-MR, 2013 WL 1188006, rendered March 21, 2013 (unpublished).
A separate, one-day trial was conducted on the handgun charge on September 22, 2011. The Commonwealth presented testimony from eyewitnesses, investigating officers and ballistics experts. Much of this testimony centered on the events of May 25, 2006, which precipitated Benton's other felony charges.
Le'mon Allen and Breanna Johnson testified Benton had attempted to rob Le'mon at his home, firing one round into the floor of the home before his gun jammed. Upon ejecting the jammed live round, Benton fired several more rounds during an ensuing foot chase. Le'mon and Breanna identified the gun as a black automatic. Le'mon later identified Benton from a photo lineup as the perpetrator.
In relation to a second incident occurring the same evening, Will Mattingly and Jeff Proctor testified two unknown men—later identified as Benton and his co-defendant—knocked on the door of Will's home, brandished firearms and demanded money. Jeff indicated Benton struck him across the bridge of his nose with a semiautomatic handgun. Jeff indicated he saw flashes of light and heard multiple gunshots coming from just outside the home immediately upon Benton's departure. Will could not recall hearing gunshots. At least three gunshots could be heard in a portion of a 911 call played for the jury. Jeff picked Benton out of a photo lineup and both men made in-court identifications of Benton as the same man who entered the home that evening.
The Commonwealth presented testimony from three police officers regarding their investigations into the incidents, including the collection of a live round, spent shell casings, and spent projectiles from the two scenes. The statements revealed the officers were unable to locate the handgun Benton carried that evening. A firearms examiner testified he had examined the spent casings and determined all had been fired from the same weapon. The parties stipulated to Benton's date of birth and that he had been convicted of a felony in Fayette County in 1999.
The jury convicted Benton and recommended a sentence of ten years' imprisonment. After Benton waived separate sentencing, the trial court imposed the recommended sentence, ordering eight years to be run concurrently with his forty-four year sentence, and two years to be run consecutively to that sentence. This appeal followed.
Benton raises two allegations of error in seeking reversal of his conviction and sentence. First, he contends the trial court improperly permitted the Commonwealth to introduce irrelevant, unduly prejudicial evidence of other crimes, wrongs or acts, and that the Commonwealth failed to give the required pretrial notice of its intent to offer such evidence pursuant to KRE 404(c). Second, he contends introduction of evidence of his other crimes constituted a double jeopardy violation. Benton concedes his arguments are unpreserved for appellate review, but requests review pursuant to the palpable error standard set forth in RCr 10.26.
Kentucky Rules of Evidence.
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"This Court reviews unpreserved claims of error on direct appeal only for palpable error. To prevail, one must show that the error resulted in 'manifest injustice.'" Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). RCr 10.26 states
[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.To determine whether a manifest injustice has occurred, reviewing courts are required to determine whether "the defect in the proceeding was shocking or jurisprudentially intolerable." Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). An error cannot be palpable unless there is a "substantial possibility" that the result would have been different without the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). We shall review Benton's allegations with these standards in mind.
Benton first argues the trial court erred in permitting the Commonwealth to introduce evidence of his other crimes which unduly prejudiced the jury against him and resulted in "a harsh, maximum sentence." He contends the offering of this evidence was more prejudicial than probative and should have been excluded. Benton argues the trial testimony should have been limited to statements from witnesses that they saw him with a handgun and descriptions of the weapon. He believes any additional testimony regarding events surrounding his contact with the witnesses and actions against them amounted to "other crimes" evidence upon which the jury could have based its verdict. Benton also alleges the Commonwealth's failure to provide adequate pretrial notice of its intent to offer such evidence mandates reversal. He argues the prejudicial evidence unjustifiably persuaded the jury to give him the maximum possible sentence.
In support of his argument, Benton cites Meyers v. Commonwealth, 381 S.W.3d 280 (Ky. 2012), for the proposition that evidence of other crimes, including crimes committed with the gun, is irrelevant in a severed proceeding related to possession of a handgun by a convicted felon. However, he misapprehends the holding of Meyers, and its applicability to the instant matter. The statement Benton relies upon from Meyers was contained in a discussion of whether the trial court erred in permitting the defendant's wife to testify against him in violation of the spousal privilege. Under that privilege, Meyers could prevent his spouse from testifying unless the crime charged was directed at her person or property. Our Supreme Court determined the charge of possession of a handgun by a convicted felon could in no way be seen as being directed at the person or property of Meyers' wife, and thus, he should have been permitted to prohibit her from testifying against him.
Clearly, the issues and holding in Meyers are legally and factually distinct from those at bar. Further, Meyers was rendered nearly six and a half years after Benton was charged and over a year after he was sentenced on the possession charge at issue in this appeal. Nothing in Meyers indicated any of its holdings should be applied retroactively. Generally, absent a clearly expressed intent to the contrary, our courts disfavor retroactive application of a statute or decision. See KRS 446.080(3) ("no statute shall be construed to be retroactive, unless expressly so declared"); see also Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 166-67 (Ky. 2009) (retroactive application of statutes improper unless legislative intent to do so is clearly manifested); BellSouth Telecommunications, Inc. v. Southeast Telephone, Inc., 462 F.2d 650 (6th Circ. (Ky.) 2006) (same). Thus, Benton's reliance on Meyers is misplaced.
Furthermore, the only prejudice Benton alleges befell him is the jury gave him the maximum sentence. Upon finding guilt, a jury is to set punishment as it sees fit, and such determination will not generally be disturbed by a reviewing court, so long as the sentence is within the statutorily mandated range. See Durham v. Commonwealth, 248 S.W.2d 709, 711 (Ky. 1952). Only if the sentence is deemed to have resulted from passion or prejudice, or is flagrantly against the weight of the evidence, will it be disturbed on appeal. A jury is free to draw inferences from the proof presented, Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999), and is charged with assessing the weight and credibility of the evidence. Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999). Based on the record before us, we are unable to conclude the punishment fixed by the jury— although the statutory maximum—resulted from passion or prejudice, or was flagrantly against the evidence. Thus, we are likewise unable to conclude the trial court's admission of testimony from the eyewitnesses, investigating officers, and experts, was in error, or that such testimony caused appreciable prejudice to Benton.
Moreover, in light of the overwhelming evidence against Benton, we cannot say there is a "substantial possibility" the outcome of his trial would have been different without the challenged testimony. Brewer, 206 S.W.3d at 349. Therefore, even had we concluded error had occurred, we could not hold that such an error was palpable.
Benton's final contention is the introduction of evidence relating to other crimes for which he had already been convicted violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. Although a novel and innovative argument, it is without merit. Benton was on trial for a wholly separate offense from his prior convictions even though one series of events precipitated all of the charges, and a conviction in the instant matter required findings of facts not in issue in the earlier trial. Taking his contention to its logical conclusion, Benton's position would prohibit the introduction of any facts determined in a prior proceeding from being introduced in any subsequent proceeding, lest a double jeopardy violation would occur. This position is unsupported in the law, and we must refuse Benton's invitation to graft such a Draconian measure upon the vast body of criminal law. To do so would invite defendants to demand separate trials for all offenses in an attempt to prevent the introduction of relevant and probative evidence of guilt. This we cannot countenance. There was no error, and certainly no palpable error.
Therefore, for the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS BUT FILES SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING: I concur and write separately only to reference the exception found in KRE 404(b)(2) as concerns the subject testimony. See The Kentucky Evidence Law Handbook, 4th edition, Robert G. Lawson, §2.25[4] for a thorough discussion on the matter. Regardless, in reviewing the briefs and recounted testimony that is the subject of the palpable error review, it does appear that the testimony does not rise to the level of palpable error. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky