Opinion
NO. 2017-CA-000170-MR
06-01-2018
JAMES BLAIR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE C. A. WOODALL, III, JUDGE
ACTION NOS. 15-CR-00006 & 16-CR-00084 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. NICKELL, JUDGE: James Blair appeals as a matter-of-right from a judgment and sentence entered by the Lyon Circuit Court on January 6, 2017. Judgment followed a brief trial at which jurors found Blair guilty of promoting contraband and being a persistent felony offender, both in the first degree (PFO I). Jurors fixed punishment at five years enhanced to ten years by virtue of Blair's PFO I status. Sentence was imposed consistent with the jury's verdict. On review of the record, the briefs and the law, we affirm.
Kentucky Revised Statutes (KRS) 520.050, a Class D felony.
On April 7, 2015, Blair, an inmate at the Kentucky State Penitentiary (KSP), was indicted on a single count of promoting contraband in the first degree after a homemade institutional weapon often called a "sticker" or "shank" was discovered inside his cell. Blair was arraigned on June 5, 2015, with Hon. Chris Polito at his side. When Blair entered his not guilty plea, he had already filed two pro se motions, one of which the trial court denied that day. Blair decided to discuss the other with Polito before pursuing it further.
On July 7, 2015, Blair filed another pro se motion, this time claiming the trial court lacked jurisdiction due to noncompliance with RCr 2.02, 2.04, 2.06 and 3.02. At a hearing on August 7, 2015, the motion was denied. In that same hearing, Blair challenged Lyon Circuit Court being held in the basement of KSP instead of a public courtroom. The trial court explained to Blair the KSP courtroom is designated as a proper Lyon Circuit Court courtroom and is open to the public. After hearing Blair's concerns, the trial court arraigned Blair again and accepted his plea of not guilty. Polito then requested a hearing be scheduled pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Blair said he knew the purpose of Faretta, but had not previously represented himself. Blair's next court date—the Faretta hearing—was set for September 4, 2015.
Kentucky Rules of Criminal Procedure.
On that date, Blair again appeared with Polito. A pretrial conference was scheduled for February 5, 2015, and trial was set for March 30, 2015. The court noted Blair had pending pro se motions. When asked if he was satisfied with Polito's representation, Blair answered, "At this point," prompting the trial court to state, "I'll just wait and react if you bring that up then in the future. Okay?" Blair shook his head affirmatively, and may have said, "Yes, sir." Thus, a Faretta hearing was scheduled, but never occurred due to a change in Blair's satisfaction with counsel. At least five more court dates occurred before trial finally convened on November 22, 2016, without any further concern being expressed about counsel's performance.
The morning trial finally began, Blair was represented by Hon. Clay Beineke. Blair was arraigned on an additional charge of being a PFO I. He pled not guilty. Blair stated Beineke had not been "very helpful," moved to dismiss Beineke, and asked to represent himself. The court asked Blair to state his grievance. Blair said the prison had confiscated his legal papers and did not return them to him until that morning as he headed to court. He claimed he had read his indictment but Beineke had not. He further suggested he had been charged with only a misdemeanor, not a felony.
The court allowed Beineke to respond. Beineke said, "I believe I'm ready to proceed." Beineke said he had discussed the indictment with Blair and confirmed he was charged with "Promoting Contraband - First Degree" pursuant to KRS 520.050, a Class D felony. Blair stated he believed he was ready to go to trial alone. Beineke acknowledged Blair had the right to discharge him, or, Beineke could assist Blair—if desired. The Commonwealth argued Beineke was ready to proceed and discharging counsel at such a late date could prejudice Blair.
The trial court told Blair he had no right to demand a specific attorney represent him, and further noted Beineke is experienced and ready to proceed with trial. Citing Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982), the court told Blair the morning of trial was not the time to decide to represent himself. Declaring the motion untimely, the trial court denied it and trial went forward with Beineke actively representing Blair.
In opening statement, defense counsel argued two themes. First, there are rules that apply to all—both inmates and correctional officers. Second, Blair had no "motivation" to possess contraband that would jeopardize the transfer to another institution he had initiated.
The proof at trial revealed the following. Blair's application for transfer to another institution had been approved, but he was unaware of that fact on November 14, 2014. That morning he argued with a corrections officer when he was not released for breakfast with other inmates in Cell House 6, E Walk, and was relocated to the restricted housing unit.
Inmates being transferred to other institutions are given garbage bags in which to pack their belongings and carry them to the property room. Prior to releasing inmates for breakfast, an officer walked past Blair's cell dispensing bags; none were given to Blair. When an inmate is sent to restricted housing, however, a property officer collects the inmate's property from his cell and takes it to the property room for inspection and secure storage.
Blair was logged into the restrictive housing unit at 7:15 a.m. About an hour later, Officer Lisa Crick entered Cell House 6, E Walk, Cell 10, where Blair had previously been assigned, to pack Blair's belongings. A corrections officer opened the cell door, allowing Officer Crick to enter.
A toilet was attached to the left wall of Cell 10, but it was not immediately next to the front of the cell. Beyond the toilet a small diagonal wall met a desk attached to the back wall. Officer Crick saw a cheese cracker box on the floor on the far side of the toilet between the toilet and the desk. Inside that box, Officer Crick found a weapon wrapped in paper towels. Officer Crick collected the weapon and paper towels, discarded the box, filed a report and at 9:15 a.m., checked the weapon into the evidence room.
The weapon was erroneously filed under Institutional No. 108837. Blair's Institutional No. is 108833. Blair was the only "James Blair" housed at KSP when the weapon was discovered. Lt. James Beavers, Internal Affairs Officer, testified the weapon collected from Blair's cell was similar to an ice pick and is considered "dangerous contraband" prisoners are prohibited from possessing due to risk of injury to other prisoners and staff.
Officer Crick and Lt. Beavers were the only witnesses called by the Commonwealth. A directed verdict motion at the end of the Commonwealth's case was denied.
Blair testified in his own defense. He did not deny the weapon was found in his cell; he maintained he did not make the weapon nor did he have it in his cell. He suggested other people had access to his cell and could have left the cheese cracker box containing the weapon in his cell while he was being physically moved to the restricted housing unit and other prisoners in Cell House 6, E Walk, were returning from breakfast—all of which occurred around 7:15 a.m. Blair admitted being a convicted felon.
At the conclusion of all the proof, defense counsel renewed his directed verdict motion emphasizing the discrepancy in Institutional Numbers on the evidence sheet, and the potential of others having access to Cell 10 for one hour before Officer Crick discovered the weapon. The Commonwealth opposed the motion noting it had proved the weapon was located inside Blair's cell; KSP is a detention facility; and, the weapon found inside a detention facility was "dangerous contraband." The trial court noted defense counsel had stated Blair's version well, but there was sufficient proof the weapon had been located inside Blair's cell during a routine inventory search in preparation for an inmate transfer. The trial court went on to say the weapon was discovered inside KSP and the weapon constituted "dangerous contraband." Thereafter, the trial court denied the directed verdict and turned its focus to the instructions.
The Commonwealth tendered instructions; the defense did not. The court asked defense counsel whether an instruction on promoting contraband in the second degree was desired. The Commonwealth objected, stating such an instruction was unsupported by the evidence; defense counsel asked that jurors be instructed on both felony and misdemeanor promoting contraband. The trial court stated it would consider including both, but ultimately instructed only on first-degree promoting contraband.
KRS 520.060, a Class A misdemeanor. --------
In closing argument, Beineke reprised the theme "all must follow rules." Rules he mentioned were: identifying inmates (a reference to Officer Crick writing the wrong Institutional Number on the evidence bag); discarding the cheese cracker box because it was not contraband, but retaining the paper towels in which the weapon was wrapped; and, garbage bags not being provided to Blair even though his transfer had been approved.
In its summation, the Commonwealth noted the trial had been short, but was important to Blair, the Commonwealth and the correctional officers. The Commonwealth argued one of Blair's two defenses—that someone planted the weapon in his cell while he was being transferred to the restricted housing unit and other prisoners assigned to the same cellblock were returning from breakfast—was "almost preposterous," because inmates are "watched." The Commonwealth argued the discrepancy in Institutional Numbers was mere clerical error and people do make mistakes. The prosecutor then stated,
I often wonder when you have a case like this; you have to look at the motive of the witnesses in testifying. Who testified here today, who has the most to lose by telling you under oath that—that knife—he didn't know that knife was there? A convicted felon who stands to—if convicted—receive more time in the penitentiary?Defense counsel objected to the prosecutor mischaracterizing Blair as a liar. The prosecutor responded he was "just asking the question who has mot—who has the real motive to tell the truth and who has a motive not to." The trial court stated, "I haven't heard any name calling, and I think it is a question of motivation that's legitimate to argument [sic]. So I'm going to overrule the objection."
Jurors convicted Blair of first-degree promoting contraband, recommending a sentence of five years. Following a separate penalty phase, jurors determined Blair to be a PFO I and recommended an enhanced sentence of ten years. This appeal followed.
Blair's first allegation of error is he was denied his constitutional right to represent himself at trial. We disagree. As explained above, Blair filed multiple pro se motions throughout the pendency of this indictment. At scheduled court hearings he was not shy about speaking up and asking questions. A Faretta hearing was requested by counsel and scheduled at Blair's second court appearance. On the day Blair's concerns were to be addressed, he voiced no concerns, so the trial court did not conduct the Faretta hearing. However, the trial court specifically told Blair it would rely on Blair to renew the request if things changed, and the court would "react if you bring that up then in the future. Okay?" Blair never mentioned any further concerns—until the morning of trial. Citing Moore, 634 S.W.2d at 430, the trial court found Blair's request to proceed pro se—on the morning of trial—untimely. Moore was quoted with favor in Applegate v. Commonwealth, 299 S.W.3d 266, 273 (Ky. 2009), and remains good law.
In Moore v. Commonwealth, we held that a motion for self-representation filed on the morning of trial was not timely. 634 S.W.2d 426, 430 (Ky. 1982). The trial court may grant an untimely request, but that decision is within the sole discretion of the trial court. Soto [v. Commonwealth], 139 S.W.3d [827,] 857 [Ky. 2004] (citing Robards [v. Rees], 789 F.2d [379,] 384 [(6th Cir. 1986)]). As such, we will not disturb the decision of the trial court unless "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).The trial court did not abuse its discretion in denying Blair's untimely request to act pro se.
Blair's second allegation is the trial court erred in denying his requests for a directed verdict. So long as "it would be clearly unreasonable for a jury to find guilt," we must affirm. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The evidence showed the weapon—dangerous contraband—was located inside Blair's cell within KSP—a detention facility—during a routine inventory search in preparation for an inmate transfer. Evidence established Cell 10 was assigned to Blair and he was the only "James Blair" housed in KSP at the time.
The evidence was sufficient to convince reasonable jurors Blair exercised actual dominion or control over the weapon. While Blair testified others could have placed the weapon in his cell, and he was unaware the weapon was in his cell, those were merely theories the jury could believe, but rejected as was their province. The Commonwealth was not required to "rule out every hypothesis except guilt beyond a reasonable doubt." Ratliff v. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792-93, 61 L.Ed.2d 560 (1979)). Moreover, a jury may conclude contraband found in a residence under the defendant's control is in the defendant's possession. See Clay v. Commonwealth, 867 S.W.2d 200, 203 (Ky. App. 1993). Cell 10 was under Blair's control when the weapon was discovered. A directed verdict was properly denied.
Blair's third claim is the trial court erroneously overruled his objection to the prosecutor's closing argument urging jurors to consider witness motivation—a theme introduced by the defense during opening statement. In response to the defense objection that Blair was being mischaracterized as a liar, the prosecutor stated he was "just asking the question who has the mot—who has the real motive to tell the truth and who has a motive not to." In the wake of the trial court overruling the defense objection, the prosecutor resumed his summation, stating, "or is it two correctional employees? Who has the motive, the more incentive. That's your call. I submit it's the defendant, not correctional employees." There was no additional objection.
In his brief, Blair admits "his theory was that someone, an inmate or a guard, planted the box after he was removed to segregation but before Lisa Crick packed his property." He then couches this particular claim on appeal in terms of "[p]ersonally vouching for the credibility of witnesses is an impermissible argument." The Commonwealth argues no such claim was argued to the trial court and cannot be raised for the first time on this appeal. Elery v. Commonwealth, 368 S.W.3d 78, 97-98 (Ky. 2012) (quoting Richardson v. Commonwealth, 483 S.W.2d 105, 106 (Ky. 1972)). The initial question is whether an objection to mischaracterizing Blair as a liar fairly brought the issue of impermissibly vouching for one's own witnesses to the trial court's attention to justify review. We hold the single defense objection did not.
Blair has not requested palpable error review of this claim.
Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant. See Thomas v. Commonwealth, 153 S.W.3d 772, 782 (Ky. 2004); Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005).Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008), as modified on denial of reh'g (May 22, 2008). The issue is not properly before us and will not be considered.
Finally, Blair makes two claims about receiving an enhanced sentence as a PFO I. He admits the first argument—that jurors received insufficient proof to enhance—is unpreserved, but requests palpable error review. The second argument—that his three prior felony convictions merged into a single conviction under KRS 532.080(4)—was argued to the trial court and is, therefore, preserved.
To find Blair eligible for enhancement as a PFO I, the Commonwealth had to prove he was more than twenty-one, had been convicted of two or more felonies, and now stood convicted of another felony. KRS 532.080(3). During the guilt phase, Blair had confirmed his birthdate is May 9, 1966. Probation and Parole Officer Kristen Dickerson reconfirmed Blair's date of birth during the penalty phase. Without objection, through Dickerson, certified judgments for three prior felonies of which Blair had been convicted were introduced as Commonwealth's exhibits. Dickerson testified Blair is currently serving thirty-five years.
First was Graves Circuit Court Case No. 91-CR-83, a November 8, 1991, third-degree burglary conviction when Blair was twenty-three years old. Dickerson did not testify to the sentence length—which was five years—but confirmed Blair was in custody in KSP on the charge when he committed the offense of first-degree promoting contraband of which he had just been convicted.
Second was Fulton Circuit Court Case No. 93-CR-8 in which Blair was convicted of three counts of receiving stolen property and being a PFO II for which he was sentenced to serve twenty years. Blair was twenty-six at the time of commission of this crime and was in KSP custody at the time of his current offense.
Third was Graves Circuit Court Case No. 06-CR-170 in which Blair was convicted on three counts of first-degree sexual abuse. Blair was ages thirty-nine and forty at the time of those offenses. Dickerson did not testify to the length of sentence imposed—which was ten years consecutive to previously imposed terms.
On cross-examination, Beineke asked Dickerson a single question. Was Blair serving time on all three prior convictions on November 14, 2014—the date the weapon was discovered in his cell? Dickerson answered he was according to his resident record card. At that point, Beineke asked to approach the bench and argued the three prior judgments had merged into a single conviction making PFO I status an impossibility.
The defense argument prompted several concerns, but none about sufficiency of the proof in the penalty phase. Just before instructing jurors in the penalty phase, the trial court prohibited all three certified judgments from being sent to the jury room to avoid jury confusion. The parties had stipulated the 1991 conviction was for third-degree burglary even though the judgment stated first-degree burglary. As a result, the trial court prevented the 1991 judgment from going to the jury room.
The 2006 judgment was also problematic. It referenced additional charges of which Blair was not convicted. Again, in an effort to avoid jury confusion, the court decided not to allow that judgment to be sent to the jury room. Whiting out the extraneous information was considered—but rejected—because the judgments were certified and could not be materially altered in the courtroom.
As noted by the Commonwealth, had an objection been lodged after the trial court decided not to send any of the judgments to the jury room, the missing information could have been read into the record. There being no objection, that did not happen. While an error may have occurred, it did not rise to palpable error. Mason v. Commonwealth, 331 S.W.3d 610, 624 (Ky. 2011). Dickerson's testimony provided sufficient evidence for jurors to fix Blair's punishment at five years on the underlying crime and enhance it to ten years due to his status as a PFO I. "A reasonable inference is sufficient to meet the requirements of the PFO statute." Shabazz v. Commonwealth, 153 S.W.3d 806, 813-14 (Ky. 2005). There was no palpable error.
Lastly, Blair argues his prior convictions merged into one under KRS 532.080(4) which reads:
(4) For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.Blair's premise is he was serving one "uninterrupted consecutive term[] of imprisonment" on all three cases merging the three convictions into one. He claims this is a result of a judgment entered October 4, 2007, ordering his sentences to run consecutively, and is supported by Dickerson's testimony Blair is serving thirty-five years. As a result, Blair claims at most he could be tried as a PFO II—an instruction the trial court gave along with the instruction on PFO I. Blair seeks a new penalty phase.
The Commonwealth counters with KRS 197.045(3) which reads:
(3) When two (2) or more consecutive sentences are to be served, the several sentences shall be merged and served in the aggregate for the purposes of the sentencing credit computation or in computing dates of expiration of sentence.and KRS 532.120(1)(b) which reads:
(1) An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the Department of Corrections. When a person is under more than one (1) indeterminate sentence, the sentences shall be calculated as follows:The Commonwealth argues Blair committed multiple felonies in Fulton County in 1993 before completing the sentence on a felony he had committed in Graves County in 1991. In 1993, the terms were ordered to run consecutively. Then, Blair did not complete the aggregate sentences for the first two judgments when he committed more offenses in Graves County in 2006 when he received another consecutive sentence. According to Dickerson's testimony, Blair was serving thirty-five years on all three priors when he promoted contraband in the first degree on November 14, 2014—the underlying charge for his most recent conviction.
. . .
(b) If the sentences run consecutively, the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms.
Blair overlooks critical language in the Commentary to KRS 532.080(3) specifying:
When an individual has been convicted two times before serving any time in prison, his convictions shall be
considered a single conviction for purposes of this section.Blair's argument was recently rejected in Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011).
To be deemed a first-degree PFO, a person must, among other things, have been convicted of two previous felonies. KRS 532.080(3). KRS 532.080(4) outlines the methodology used to evaluate whether an individual has been convicted of two previous felonies:
For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.
In Williams [v. Commonwealth], the appellant was released on parole after being convicted of and imprisoned for four counts of forgery. [639 S.W.2d 788, 790 (Ky. App. 1982)]. While on parole, he was convicted of theft by unlawful taking and sentenced to four years' imprisonment. Id. The Court of Appeals aptly rejected his interpretation of KRS 532.080(4) that would require two or more convictions to be treated as one even when prison time has been served after the first conviction and the second crime is committed while on parole from the first conviction:
Appellant's suggested interpretation of KRS 532.080(4) would erode the purpose of the statute. Without analyzing the entire history and purposes of the statute, it is enough to say that the statute is designed to strengthen the Commonwealth's attempts at rehabilitation of convicted persons. Greater
penalties are sanctioned for those persons who, after serving a prison term for a conviction, demonstrate the futility of their rehabilitation by committing other crimes after their release. The concurrent sentence break is provided only to those who may have committed more than one crime but received their sentences for these crimes prior to serving any time in prison.
...
It is clear from the wording of the statute and the Commentary thereto that a person who, in appellant's situation, serves time in prison for a felony, is released on parole, commits another crime and is resentenced to prison, that upon his release again and third conviction, he has two prior felonies for purposes of a persistent felony offender charge. That is, the rehabilitative efforts on his first conviction failed, the rehabilitative efforts on his second conviction failed, and he is, under the statute, a persistent felony offender in the first degree upon receiving his third conviction.
Blades, 339 S.W.3d at 454-55 (footnote omitted). Applying Blades to the facts at bar, Blair was in custody on three separate judgments when he committed the offense of promoting contraband in the first degree, another felony. Enhancement of his sentence as a PFO I was proper.
Id. at 790 (emphasis added). We adopt this reasoning.
The judgment of the Lyon Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky