Opinion
NO. 2011-CA-001766-MR
02-01-2013
DERRICK L. BRUCE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen Kallaher Schmidt Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A MILLER, JUDGE
ACTION NO. 10-CR-00096
OPINION
AFFIRMING
BEFORE: MAZE, MOORE AND TAYLOR, JUDGES. MAZE, JUDGE: Appellant, Derrick Bruce ("Bruce"), appeals from his conviction and sentence by a jury on the charges of complicity to commit trafficking in a controlled substance ("TICS") and being a persistent felony offender ("PFO") in the first-degree. After careful review of the trial record in this case, we affirm Bruce's conviction and subsequent sentence.
Background
On May 11, 2010, Bruce and his co-defendant, Johnnie King ("King") were involved in a drug transaction. King called an acquaintance to inform him that he could purchase methamphetamine from King. Unbeknownst to King, the acquaintance was working as a confidential informant for the Kentucky State Police. After informing authorities of the potential transaction, the informant called back to facilitate a meeting for the purchase. During the call, which authorities recorded, the informant testified that Bruce answered King's phone and told him to meet him at a nearby convenience store. According to King's testimony, Bruce then weighed the methamphetamine and bagged it in preparation for sale.
Authorities, along with the informant, created audio recordings and photographs of the conversation which took place during the transaction. Throughout the transaction, Bruce was a passenger in a truck driven by King. The informant parked his truck next to the driver's side of King's vehicle. King handed the informant a box which contained more than three grams of methamphetamine. King then told the informant that the methamphetamine was "wet" (recently manufactured). King asked the informant to remove the methamphetamine from the box and replace it with money. The informant did so, placing $350 in cash in the box and handing it back to King. After completing their business, King and Bruce departed and drove in the direction of Bruce's home.
Kentucky State Police testing confirmed that the substance was methamphetamine. Accordingly, on October 20, 2010, a grand jury indicted Bruce and formally charged him with complicity to commit TICS in the first degree and with being a PFO in the first degree. King was indicted separately.
The trial court set Bruce's trial for August 5 and 6, 2011. Four days prior to trial, Bruce moved the court for a separate trial from King's, arguing that Bruce's and King's respective defenses were antagonistic and that evidence presented exclusively against King would prejudice Bruce. The Commonwealth objected and filed a motion to consolidate the trials. Two days before trial, the trial court overruled Bruce's motion and consolidated the trials.
At trial, Bruce filed a motion in limine to prohibit opposing counsel from introducing evidence of his prior conviction for manufacturing methamphetamine. The trial court agreed, stating that the other conviction was not to be mentioned "until the door's open." During the opening statement by King's counsel, counsel stated, "I'm also going to prove that Derrick Bruce makes methamphetamine." Bruce immediately objected, stating that the issue of manufacturing was irrelevant to the charge of trafficking. Bruce also requested a mistrial. When this motion was overruled, Bruce requested that the jury be admonished and the trial court immediately obliged.
The trial court's admonition was as follows: "Ladies and gentlemen, we're not here today on a charge of manufacturing methamphetamine. It's not relevant. You will disregard those comments."
During the proof stage of the trial, King testified that Bruce weighed and bagged the methamphetamine, and was the force behind the deal with the informant, asking King to drive him to the meeting place and to exchange the methamphetamine for the money. On at least two occasions, Bruce objected to counsel for King's line of questioning while examining King and while cross-examining the informant, arguing that the questions asked of both regarded the irrelevant issue of manufacturing and not trafficking. The trial court sustained these objections. Bruce did not follow these objections with requests for an admonition or a mistrial.
The informant who assisted the police in the drug sting also testified. He testified that Bruce answered King's phone when he called to arrange the meeting place and that Bruce named the location for the transaction. The informant testified that Bruce was in the passenger seat of the vehicle with King but did not say or do anything during the transaction. Bruce called no witnesses and did not testify in his own defense.
At the close of proof, both King and Bruce tendered a jury instruction for the lesser-included offense of facilitation of TICS. The trial court elected not to provide such an instruction to the jury for either defendant. The jury convicted Bruce and King of complicity to commit TICS and being a PFO. At sentencing, the trial court instructed the jury to sentence Bruce for the PFO conviction first, despite counsel's insistence upon Bruce being sentenced for the TICS conviction. The jury recommended a sentence of ten years' incarceration for Bruce and the trial court adopted this recommendation; however, the trial court did not instruct the jury to recommend a sentence for TICS and the jury never did so. Bruce subsequently requested a new trial, a request which the trial court denied. This appeal follows.
Analysis
Specifically, Bruce challenges his conviction and sentence on four grounds: 1) That the trial court erred in not tendering to the jury a lesser-included instruction for facilitation of TICS; 2) that Bruce's and King's trials were improperly joined, prejudicing Bruce's defense; 3) that the trial court erred when it denied Bruce's request for a mistrial following the irrelevant comments made during King's opening statement; and 4) that the trial court erred in instructing the jury to sentence Bruce on the PFO charge and not the underlying TICS charge. We will address each in the order in which they unfolded during the trial.
I. Joinder of Defendants
Bruce argues that the trial court's joinder of his and King's trials prejudiced his defense and constituted an abuse of discretion. Specifically, Bruce argues that, because certain evidence against King did not implicate him, and because King's testimony tended to incriminate Bruce, his defense was prejudiced and he was denied a fair trial. We disagree.
The decision whether to grant separate trials is within the sound discretion of the trial judge. Rachel v. Commonwealth, 523 S.W.2d 395 (Ky. 1975). Only upon a showing of an abuse of that discretion will the trial judge's decision be overturned. Compton v. Commonwealth, 602 S.W.2d 150 (Ky. 1980). A party seeking severance must make a "positive showing prior to trial that joinder would be unduly prejudicial." Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992)(citing to Commonwealth v. Rogers, 698 S.W.2d 839 (Ky. 1985)).
Kentucky Rules of Criminal Procedure ("RCr") 9.16 states
[i]f it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint, or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. A motion for such relief must be made before the jury is sworn. . . . In ruling on a motion by a defendant for severance the court may order the attorney for the Commonwealth to deliver to the court for inspection in camera any statements or confessions made by the defendants that the Commonwealth intends to introduce in evidence at trial.
The Supreme Court of Kentucky has held that the term "prejudiced" in the rule "means unfairly prejudiced. A defendant is prejudiced, of course, by being tried at all." Ware v. Commonwealth, 537 S.W.2d 174 (Ky. 1976). Thus, the alleged prejudice must rise above merely inconveniencing the defendant at trial; it must be unfair.
Several factors are relevant to determining whether prejudice is unfair. Bruce makes much of the fact that the entire premise of King's defense at trial was to blame him for initiating and carrying out the sale. However, Bruce's emphasis is misplaced. Even if defendants attempt to cast blame on each other, severance is not required. Davis v. Commonwealth, 967 S.W.2d 574, 581 (Ky. 1998)(citing to United States v. Arthur, 949 F.2d 211, 217-18 (6th Cir. 1991)). Bruce also relies heavily on his assertion that his and King's defenses were antagonistic, and therefore required separate trials. While the Federal Rules of Criminal Procedure may require severance in such cases, nothing in Kentucky law or the Kentucky Rules of Criminal Procedure requires this. Rather,
the fact that defenses of jointly indicted defendants may be, in some respects, antagonistic or that testimony of one or both of them may directly implicate the other are only factors for the trial judge to consider in making his determination as to whether defendants will be prejudiced by a joint trial.See Rachel, supra, at 400; see also Ware v. Commonwealth, 576 S.W.2d 174 (Ky. 1976)("[N]either antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice.").
Although antagonism between the defenses of two co-defendants is a relevant consideration in deciding whether to sever charges, "[t]he movant must show that the antagonism between the co-defendants will mislead or confuse the jury." Ratliff v. Commonwealth, 194 S.W.3d 258, 265 (Ky. 2006)(quoting Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991)). "The movant satisfies this burden if he or she shows that the jury was unable 'to separate and treat distinctively evidence that is relevant to each particular defendant at trial.' " United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985), cert. denied, 475 U.S. 1017 (1986).
Bruce fails, on appeal, to establish unfair prejudice. Specifically, he fails to demonstrate adequately that joinder of the two cases misled or confused this jury. While King went to great lengths to prove Bruce was the driving force behind the transaction, and while his and Bruce's accounts of what happened differed greatly at times, it remains the case that the two men participated in the same drug transaction. It was to be expected that King would attempt to pin the crime on Bruce, and Bruce was certainly entitled to attempt the same against King. The fact that King was attempting this defense is not, alone, grounds for severance. Further, King's testimony certainly prejudiced Bruce's defense. Applying the same logic as the Ware court, little that was entered into evidence against Bruce would not tend to prejudice his defense. However, King's testimony does not rise to the level of unfair prejudice, as it would have been admissible whether the trials were joined or not, and Bruce fails to establish how it somehow confused or misled the jury.
Accordingly, we find no unfair prejudice resulting from the joinder of the trials and, therefore, the trial court did not abuse its broad discretion over the matter.
II. Trial Court's Denial of Bruce's Motion for Mistrial
Bruce next argues that King's opening statement, in which King's attorney made an irrelevant statement regarding Bruce's manufacturing of methamphetamine, prejudiced his case and required a mistrial. Bruce contends that the trial court's admonition to the jury to exclude King's statement was insufficient to cure the prejudice. Once again, we disagree.
The standard for reviewing the denial of a mistrial is abuse of discretion. Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)(overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)). Whether to grant a mistrial is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed absent an abuse of that discretion. Id.
The Supreme Court has held
[a] mistrial is an extreme measure and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way[.]Bray at 591. A trial judge's admonition will cure an erroneous admission of testimony or any other trial irregularity. Hardy v. Commonwealth, 719 S.W.2d 727 (Ky. 1986). Furthermore, jurors are presumed to have followed an admonition. Tamme v. Commonwealth, 973 S.W.2d 13, 26 (Ky. 1998)(citing Schweinefuss v. Commonwealth, 395 S.W.2d 370, 375 (Ky. 1965)). "'[T]he presumptive efficacy of an admonition falters when there is an overwhelming probability that a jury cannot follow the admonition' . . . or when the evidence is without a factual basis and is inflammatory or highly prejudicial." Parker v. Commonwealth, 241 S.W.3d 805, 809 (Ky. 2007)(quoting Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003)).
King's statement, that he would "prove Derrick Bruce makes methamphetamine," despite the court's specific admonition that any reference to Bruce's prior charge of manufacturing be avoided, was indeed prejudicial to Bruce and irrelevant to his trial for trafficking. However, the trial court acted properly by immediately, and strongly, admonishing the jury to disregard King's statement. Bruce contends that he "was unquestionably denied a fair and impartial trial" as a result of King's statement and that the only cure was to "declare a mistrial, get rid of the panel, and start afresh with a new pool." However, the law, as laid out above, does not mandate such an extreme measure in this case. The trial court's admonition to the jury regarding the single inappropriate statement by King cured the statement of its prejudicial effect. Thus, no "manifest necessity" for a mistrial remained.
Bruce further contends that King's repeated questioning of King and the informant regarding the manufacturing of the methamphetamine, "reminded [the jury] that King said he could prove Bruce manufactured meth[amphetamine]." Bruce contends that, despite his sustained objections, a mistrial was warranted due to the repeated questions regarding methamphetamine because "an overwhelming probability existed [that] the jury could not disregard King's direct claim." However, Bruce's trial counsel failed to request a mistrial following any of his objections, as required under Kentucky law. See Campbell v. Commonwealth, 788 S.W.2d 260 (Ky. 1990); Lynem v. Commonwealth, 565 S.W.2d 141 (Ky. 1978); Romans v. Commonwealth, 547 S.W.2d 128 (Ky. 1977). Therefore, the issue of whether a mistrial should have been granted based on King's questioning is not preserved for appeal and we decline to review for palpable error under RCr 10.26.
We find that the trial court acted properly and within its broad discretion when it sustained Bruce's objection, denied his motion for a mistrial and admonished the jury, curing King's irrelevant remarks of their prejudicial effect.
III. Jury Instruction on Facilitation
Bruce alleges that the trial court erred in not tendering an instruction for facilitation to the jury, as the evidence, he claims, supported such an instruction. Generally, "alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review." Howell v. Commonwealth, 296 S.W.3d 430, 432-33 (Ky. App. 2009)(quoting Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006)). Therefore, we review without deference to the trial court's decision.
It is of paramount importance to understand the difference, however slight, between the criminal statutes for criminal complicity and criminal facilitation. KRS 502.020(1), the statute under which Bruce was charged, states
[a] person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:KRS 502.020. Similarly, the facilitation statute reads
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
[a] person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.KRS 506.080(1).
The difference between the two statutes may seem semantic; however, it is significant. Facilitation is a lesser-included offense of complicity. Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995). The distinction between the two statutes depends on the defendant's state of mind. Monroe v. Commonwealth, 244 S.W.3d 69, 75 (Ky. 2008)(citing to Webb v. Commonwealth, 904 S.W.2d 226, 228 (Ky. 1995)). To put it simply, facilitation "reflects the mental state of one who is wholly indifferent to the actual completion of the crime." Thompkins v. Commonwealth, 54 S.W.3d 147, 150-51 (Ky. 2001)(internal citations and quotations omitted). Complicity requires the complicitor to intend the crime take place. Webb, supra.
As Bruce attests, the law regarding a court's decision to tender lesser-including instructions is well established in Kentucky. A trial court is required to instruct the jury on every theory of the case that is reasonably deducible from the evidence. Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007)(citing to Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000). An instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged, but conclude that he is guilty of the lesser-included offense. Luttrell v. Commonwealth , 554 S.W.2d 75, 78 (Ky. 1977). The application of this rule is best demonstrated by the opposing results in Webb and Thompkins.
In Webb v. Commonwealth, the defendant was convicted of complicity to TICS and being a PFO. The jury heard conflicting evidence during trial. Webb testified that he initially volunteered to drive his friends to do an unspecified favor for someone, and only learned that they were dealing in prescription pain pills after the transaction had begun. Webb testified he only drove his friends and never handled money or pills. The Commonwealth argued Webb had played a much more integral role. The jury was instructed under a complicity instruction. Webb requested a facilitation instruction, but the trial court denied his request.
Upon Webb's appeal of his conviction, the Supreme Court found that the complicity instruction was appropriate; however, the Court held that because there was a dispute as to the extent of Webb's involvement, the trial court's failure to tender a facilitation instruction constituted reversible error.
Contrast the result in Webb with that in Thompkins. Thompkins was part of a group which arrived at a hotel to complete a cocaine deal. Evidence presented to the jury included the fact that Thompkins helped inspect the cocaine and left with the cocaine on the floorboard of his vehicle, shortly before they were stopped by police and arrested. Thompkins did not testify to directly refute the above facts. The trial court refused Thompkins's request for a facilitation instruction. The Supreme Court affirmed, stating that, in part because Thompkins did not testify at trial, nothing in the evidence presented at trial gave jurors a reasonable belief that Thompkins had been anything but integrally involved in the cocaine deal.
We hold the facts in the present case to be more aligned with those in Thompkins, and therefore, the result must be the same. The testimony on the record, consisting of that of police, the lab technician who tested the methamphetamine, the police informant and King, included that Bruce weighed and bagged the methamphetamine, asked the informant to meet him in a certain place to purchase methamphetamine, and was the passenger in a vehicle which arrived at the scene to complete the transaction he had helped to organize. Neither Bruce, nor any other witness testified to the contrary. The only response Bruce could muster at trial was upon cross-examining other witnesses, which produced little, if any, substantive change in the events of the transaction as they had already been portrayed to the jury.
The trial court applied the correct legal analysis in denying Bruce's request for a facilitation instruction. Accordingly, we find that, unlike in Webb, there was no factual dispute before the jury regarding the level of Bruce's involvement in the transaction. Therefore, an instruction regarding facilitation was not appropriate, as the existence of such a lesser-included offense was unsupported by the evidence on the record. The evidence did not permit the jury to rationally find that the defendant was not guilty of the crime of complicity, but guilty of facilitation. The trial court properly denied Bruce's request for a facilitation instruction.
IV. Trial Court's Failure to Require a Sentence for Complicity to TICS
Bruce finally contends that the trial court erred in instructing the jury to sentence Bruce for the PFO charge before sentencing him under the TICS charge. On this point, we agree with Bruce.
Generally, "[a]lleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review." Buchanan v. Commonwealth, 2012 WL 4208939 (Ky. App. 2012)(2011-CA-000639-MR) (citing to Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006))(internal quotations omitted). Accordingly, we afford the trial court's sentencing instruction to the jury no deference.
The Supreme Court has interpreted KRS 532.055 as allowing the penalty phase hearing in a felony case to be combined with the hearing required by KRS 532.080 in persistent felony cases. See Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky. 1987). This is permitted
because the same evidence that is pertinent toward fixing the penalty is also pertinent for consideration in the enhancement of sentence, and the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine thenId. The Supreme Court has deemed this "the required practice for trial courts to follow." See Owens v. Commonwealth, 329 S.W.3d 307, 319 (Ky. 2011). That the trial court erred in failing to instruct the jury properly is undisputed. The Commonwealth concedes as much on appeal. However, our more arduous task is to determine whether this error was harmless or whether it requires remand.
whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.
RCr 9.24 provides that errors in the admission of evidence do not warrant reversal if they are harmless; that is, if the substantial rights of the parties have not been affected. "The test for harmless error is whether there is any reasonable possibility that, absent the error, the verdict would have been different." Taylor v. Commonwealth, 995 S.W.2d 355, 361 (Ky. 1999); see also McBeath v. Commonwealth, 244 S.W.3d 22, 35 (Ky. 2007). "[I]f upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held non-prejudicial." Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky. 1969), overruled on other grounds by Blake v. Commonwealth, 646 S.W.2d 718 (Ky. 1983); see also Brewer v. Commonwealth, 206 S.W.3d 313, 324-25 (Ky. 2006).
The trial court's error was harmless. Following the erroneous instruction, the jury sentenced Bruce to the minimum possible sentence of ten years' imprisonment on the PFO charge. Pursuant to KRS 218A.1412, the jury found Bruce guilty of complicity to commit TICS, a Class C felony under Kentucky law. Per KRS 532.060(2), the minimum sentence Bruce could have received for the underlying offense was five years, with a maximum of ten years, prior to enhancement under the PFO statute. Therefore, even if Bruce had received the minimum of five years for the underlying charge, the jury's finding of guilt on the PFO charge would have resulted in the minimum enhanced sentence under the statute of ten years. Hence, Bruce received no worse a sentence than if the jury sentenced him for the underlying charge, despite the trial court's error. Bruce's substantial rights were unaffected. Therefore, the error was harmless.
Despite this, we must, as the Supreme Court repeatedly has, implore the bench and bar to adhere to the "required practice" outlined in Reneer. The procedure outlined by the Court in that case serves an important purpose in minimizing the remedial tasks of judges and juries on remand. Simply stated, this trial court narrowly dodged a painstaking repeat of the penalty phase of this trial. Without strict adherence to the procedures described in KRS 532.080 and Reneer, other trial courts will not fair so well.
Conclusion
For the aforementioned reasons, we affirm the trial court's actions regarding jury instructions, joinder and admonishment of the jury following King's irrelevant statements. We affirm, in result only, the trial court's actions regarding sentencing.
MOORE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Kathleen Kallaher Schmidt
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky