Opinion
NO. 2010-CA-001015-MR
07-27-2012
JOHN COLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Department for Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 06-CR-00238
OPINION
AFFIRMING
BEFORE: KELLER, STUMBO AND VANMETER, JUDGES. VANMETER, JUDGE: John Coleman appeals from his conviction of possession of a handgun by a convicted felon and being a persistent felony offender in the first degree (PFO 1). Coleman argues that the Commonwealth engaged in vindictive prosecution, that irrelevant evidence was erroneously admitted during trial, that the trial court erred by not allowing him to stipulate to the prior felony conviction, that he was denied reasonable notice of the PFO 1 charge, that the trial court erred by not redacting parts of his testimony from a prior trial, and that the prior trial testimony was inadmissible. The Commonwealth argues that there was no error in this case and would have us affirm. Finding no error that necessitates reversal, we affirm.
I. Factual Background
This case has been heard on appeal before. We will therefore use that recitation of facts.
[Coleman] was arrested at the apartment of William Chipman after police received a 911 call in which the caller alleged that an unidentified person was brandishing a gun. Two officers responded to the scene. They were greeted by Chipman, who urged them to hurry to the rear entrance, where they spotted [Coleman] through a window in the door and shouted at him to show his hands. [Coleman] delayed slightly, leaning partly out of sight, down and to his right, and then raised his hands. The officers testified that they had the impression that [Coleman] had dropped something when he leaned down.Coleman v. Commonwealth, 2009 WL 3526657, 1-2 (Ky. 2009).
The officers entered the residence, handcuffed [Coleman], and secured the four other people who were present. They then searched the area near the door and found a loaded gun in a plastic container located to the right of the door. One of the officers picked up the gun, and a few minutes later handed it to the other officer, who unloaded it with his bare hands. When asked to whom the gun belonged, [Coleman] denied any knowledge of it.
He was charged with illegally possessing a gun, wanton endangerment, and being a persistent felony offender [in the second degree]. The wanton endangerment charge was dismissed prior to trial.
How [Coleman] arrived at Chipman's apartment was disputed at trial. [Coleman] testified that he had gone there to buy and use illegal drugs. He claimed to have bought and used an Oxycontin, and that one of the people at the apartment offered to sell him a gun. After taking the drug, he fell asleep on a couch and later awoke because he felt a person going through his pockets. As he opened his eyes, he saw a person running from him. Fearing that the person had taken his money, [Coleman] gave chase, but fell and lost track of the person. When he got to the outside door, he saw Chipman running down the stairs from the apartment. [Coleman] became irate and very vocal with the persons remaining in the apartment about his money. It was at this point that the police arrived. [Coleman] claimed never to have had a gun and that someone at the apartment had offered to sell him the one found at the scene.
Chipman gave a very different account. He claimed that no one had been using drugs at the apartment, though the officers testified that they had the "impression" that drugs were being used in the apartment, and that [Coleman] was a stranger who had shown up at the door and asked to use the bathroom. He alleged that when [Coleman] returned from the bathroom, he became loud and violent and was waving a gun around. Chipman claimed he escaped by jumping out a window onto the roof and then went to a neighbor's apartment to call 911. Chipman also admitted that he was a convicted felon.
Chipman was the only prosecution witness who had been present at the apartment before the police arrived, though the prosecution did subpoena the other witnesses. The prosecution, however, did present testimony from four police officers. The first officer simply testified that [Coleman] was a convicted felon. Two of the officers were the ones who responded to the 911 call. They both testified about arriving at the scene, seeing [Coleman] in the doorway, securing [Coleman], recovering the gun, and interviewing the witnesses. One of these officers testified that the persons present in the apartment all told him, among other things, that [Coleman] had pointed a gun at them. The other officer worked in the crime lab
and testified that the gun recovered at the apartment was in working condition and that no fingerprints had been recovered from it, that that was not unusual because it is actually difficult to recover fingerprints given the shape and texture of, and the materials that make up, most guns.
In addition to himself, [Coleman] called one other witness, Billie Melton, who he claimed had gone to the apartment with him. Ms. Melton's testimony was far from helpful, however. She repeatedly stated that she remembered very little about that night and did not remember [Coleman]. When asked about the gun on direct examination, she stated that she did not remember that [Coleman] had the gun, but on cross-examination she admitted that [Coleman] could have been the person with the gun because, though she was sure there was a gun, she could not remember who had it that night.
The jury found [Coleman] guilty of possession of a handgun by a convicted felon and being a persistent felon [in the second degree]. He was sentenced to twenty years in prison as a result.
The Kentucky Supreme Court reversed Coleman's conviction. It held that certain hearsay evidence, specifically a police officer's repeating hearsay statements that Coleman had a gun, that he pointed that gun at several people, and that he was angry and shouting, should not have been introduced at trial. Specifically, the Court recited the rule that "'[a] witness's testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination'" Id. at 4 (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009) (citing Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.E.2d 177 (2004)). The Court held that the error was not harmless. In the first trial, although the three witnesses, other than Chipman, were under subpoena and available, these witnesses did not testify.
Prior to a re-trial, on February 22, 2010, motions in limine were heard by the court. Coleman's attorney moved to prohibit the Commonwealth from introducing the name of the underlying felony for the possession of a handgun by a felon charge. Coleman also moved to preclude the Commonwealth from introducing evidence that he gave a false name to the police. Both motions were denied. It was also at this hearing that the court became aware that the Commonwealth would be seeking to amend the indictment to charge Coleman with PFO 1, as opposed to the PFO 2 charge at the first trial.
The trial began on February 24, 2010. In addition to the witnesses presented at the first trial, the Commonwealth also had the other people present at the apartment testify. The Commonwealth also showed Coleman's videotaped testimony from the first trial. Coleman was able to object and get certain portions of this tape redacted. Coleman did not testify live at the second trial. The jury ultimately found Coleman guilty of the possession and PFO 1 charges. He was sentenced to a total of 17 ½ years. This appeal followed.
II. Vindictive Prosecution
Coleman's first argument is that the Commonwealth engaged in vindictive prosecution when it changed the PFO 2 charge to a PFO 1 charge after the reversal of his conviction. Coleman argues that he is being punished for successfully appealing his first conviction. He supports this with the fact that he was not informed of the PFO 1 charge until a few days before trial. We find that this is not a case of vindictive prosecution.
RCr 6.16 provides that the court may permit an indictment to be amended any time before a verdict. That was the case here. The Commonwealth points out that Coleman has always been eligible for the PFO 1 charge. At his first trial, even though he was PFO 1 eligible, the Commonwealth was unable to obtain all the necessary information to proceed with that charge. Once the case was remanded for a new trial, the Commonwealth had the time to get the necessary information and amended the PFO 2 charge to a PFO 1 charge.
Kentucky Rule of Criminal Procedure.
The only difference between a charge of PFO 1 and PFO 2 is parole eligibility. With a PFO 2 charge, Coleman would have been eligible for parole after serving 20% of his sentence. A PFO 1 charge requires he serve 10 years before becoming eligible for parole. However, no one has a constitutional right to parole. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584 (Ky.App. 1996). Further, as stated above, Coleman was always eligible to be charged with PFO 1. The amendment prior to re-trial in this case was not the addition of a new offense, but merely a new degree of an offense for which Coleman was already indicted.
If Coleman had not been charged with a PFO charge during his first trial and the Commonwealth charged him with the new PFO charge during his second trial, the outcome may have been different. In Clark v. Commonwealth, 324 S.W.3d 747 (Ky.App. 2010), Earl Clark was indicted on April 5, 2007, on one count of receiving stolen property over $300. A jury trial occurred on September 24 and 25, 2008. On the morning of September 25, the Commonwealth informed the trial court that Clark was eligible for a PFO charge and that it was in the process of seeking an indictment. After the jury retired to deliberate the stolen property charge, the PFO indictment was returned and Clark was arraigned on that charge. Prior to sentencing, Clark entered a conditional guilty plea, allowing him to appeal the PFO charge.
On appeal, a panel of this court found that it was prejudicial to Clark's case that he was not given any notice of the PFO charge prior to trial in order to attempt to defend against the charge. Also, the Commonwealth in that case knew about the possibility of charging Clark with PFO prior to trial, but did not indicate any intention of doing so.
Clark, however, is distinguishable from the instant case. Here, Coleman has always known he was subject to a PFO charge, and no argument exists that defense counsel was unable to defend against it. Also, once the PFO 2 charge was amended to PFO 1, the trial court offered a continuance to Coleman, which he declined. Ultimately, no vindictive prosecution occurred in this case. The Commonwealth could have charged Coleman with PFO 1 at his first trial, but chose not to. The Commonwealth's actions were not unreasonable.
III. Evidentiary Rulings
Coleman next argues that he was denied due process when irrelevant and inflammatory evidence was admitted at trial. Four instances of this issue were preserved. Coleman also presents us with a list of about 22 other instances of alleged irrelevant evidence being admitted which were not preserved and for which Coleman asks for a palpable error review under RCr 10.26. We will first discuss the four preserved instances of alleged irrelevant evidence.
A. Preserved Claims
1. Identification of Prior Felony. First, Coleman argues that his previous conviction for aggravated trafficking and prison term of two years should not have been admitted into evidence. Prior to trial, Coleman filed a motion in limine to prohibit testimony regarding the underlying felony of the possession of a handgun by a convicted felon offense. The underlying felony was aggravated trafficking. Coleman argued that the name of the underlying felony was irrelevant and that the prejudicial effect outweighed any probative value. The trial court denied the motion.
The morning of trial, Coleman offered to stipulate to the fact that he had a prior felony so as to stop the Commonwealth from using the words, "aggravated trafficking," during trial. The Commonwealth opposed the stipulation and the trial court agreed, denying the motion. We find this to have been in error.
[U]pon request, a criminal defendant charged with being a felon in possession of a firearm may stipulate (with the Commonwealth's agreement) or admit (if the Commonwealth does not agree) that the defendant has been previously convicted of a felony. Such a stipulationAnderson v. Commonwealth, 281 S.W.3d 761, 766 (Ky. 2009).
or admission would mean that the jury would simply be informed that the defendant was a convicted felon, for purposes of the felon in possession of a firearm charge, but would not be informed of the specifics of the defendant's previous felony conviction(s).
We must now determine if this was a harmless error. No details of the offense were presented, just its name. His previous conviction for aggravated trafficking did not involve the use of a firearm and was not inherently dangerous or violent. In light of the fact that multiple witnesses stated that Coleman had a gun at the apartment, this error was harmless. RCr 9.24.
2. Giving False Name to Police. Next, evidence was introduced that Coleman gave a false name to the police. This evidence is relevant and was properly admitted. See Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003) (holding that evidence that defendant gave a false name was probative of guilt).
3. Coleman's Statement Concerning Gun Possession. Witnesses testified that Coleman "had a gun and was not afraid to use it." This testimony is relevant to the proof that Coleman possessed a gun and was properly admitted.
4. Coleman's Testimony from Prior Trial. Coleman also argues that his previous trial testimony was inadmissible. We disagree. "[U]nless a defendant's prior testimony was unconstitutionally compelled, that testimony may be introduced as substantive evidence against the defendant at a subsequent trial without running afoul of the constitutional privilege against self-incrimination." Brown v. Commonwealth, 313 S.W.3d 577, 606 (Ky. 2010).
Coleman further argues that the trial court erred by refusing to redact portions of his previous trial testimony. Some parts of the previous testimony were redacted on his motion, but he argues that the redaction should have been more extensive. Specifically, he claims that certain testimony was irrelevant. That testimony was: that he used his child's mother's money to buy drugs; that he traded crack cocaine for oxycontin; that he snorted oxycontin; that he had crack cocaine; and that he crushed the oxycontin and snorted it because he is a drug addict. Even though previous trial testimony is admissible in another trial, it is still subject to the rules of evidence and irrelevant evidence should not be admitted. Id. at 606. These statements were irrelevant to the case of possession of a handgun by a felon. While these statements may have depicted Coleman as a bad father or a drug user, Coleman was not charged with non-support or possession of a controlled substance, but rather with possession of a handgun by a felon. Any error in admitting the statements was harmless. RCr 9.24.
Coleman also brings our attention to another portion of his prior trial testimony that he argues should have been redacted. This portion happened on February 25, 2010, and concerned the prosecution questioning Coleman about the hearsay statements from witnesses who did not testify at the first trial. This was the same hearsay evidence that the Kentucky Supreme Court specifically ruled was inadmissible and resulted in the reversal of Coleman's conviction in the first trial. In the second trial, however, it appears that these other eyewitnesses, William Chipman, Charles Chadwick, Lisa Davis and William Bates, were called and testified directly. Whatever objection to their statements may have existed in the first trial was cured by their appearance and testimony in the second trial.
B. Unpreserved Claims
Next, we will discuss the evidence as to which no objection was made and Coleman requests palpable error review pursuant to RCr 10.26. RCr 10.26 provides:
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.
In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme Court discussed the palpable error rule of RCr 10.26, and stated
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has283 S.W.3d at 668.
resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
Under the clear holding of Jones, palpable error relief is not available unless three conditions are present. The error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding to have been jurisprudentially intolerable.
In this case, ten of twenty-two instances of alleged irrelevant evidence concern Coleman's possession of a gun, are relevant to the charge, and were properly admitted. The remaining twelve pieces of evidence can be further broken down into the prosecution witnesses' testimony. The irrelevant pieces of evidence from the prosecution's witnesses are: Coleman was doing drugs; Coleman was deranged, crazy, black, and upset; Coleman's nickname was "Craze;" Coleman had just got out of jail that day; Coleman said "Everyone in the house will die;" and Coleman ordered everyone to strip. While this evidence arguably was not relevant to the charge of possession of a handgun by a felon, the testimony came from the prosecution witnesses who observed the event. The Commonwealth is entitled to present a complete and unfragmented picture of the circumstances surrounding how the crime was discovered. Adkins, 96 S.W.3d at 793.
IV. Cumulative Error
Finally, Coleman argues that cumulative error requires reversal. In Brown v. Commonwealth, the Kentucky Supreme Court discussed the application of cumulative error.
We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial. Funk v. Commonwealth, [842 S.W.2d 476, 483 (Ky. 1992)]. Where, as in this case, however, none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice. Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002). Although errors crept into this trial, as they inevitably do in a trial as complex and long as this one, they did not, either individually or cumulatively, render the trial unfair.313 S.W.3d at 631.
In this case, and as noted by the court in Brown, although errors crept into this trial, they did not, either individually or cumulatively, render the trial fundamentally unfair. Four witnesses testified that Coleman possessed a handgun, the police who arrived on the scene saw Coleman and found a handgun in an area in which they saw him, and Coleman was a convicted felon.
V. Conclusion
Based on the foregoing, we affirm the judgment of the Kenton Circuit Court.
KELLER, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
STUMBO, JUDGE, DISSENTING: Respectfully, I dissent from the majority opinion because I find that the trial was filled with errors and that, while individually they do not necessitate reversal, cumulatively reversal is required. "[C]umulative error, the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair. We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
In this case, Coleman was erroneously not allowed to stipulate to having a prior felony. Also, multiple instances of irrelevant evidence were admitted at trial, from both prosecution witnesses and Coleman's past testimony. The irrelevant pieces of evidence from the prosecution's witnesses are: Coleman was doing drugs; Coleman was deranged, crazy, black, and upset; Coleman's nickname was "Craze;" Coleman had just got out of jail that day; Coleman said "Everyone in the house will die;" and Coleman ordered everyone to strip. The irrelevant pieces of evidence admitted from Coleman's previous testimony are: that he used his child's mother's money to buy drugs; that he traded crack cocaine for oxycontin; that he snorted oxycontin; that he had crack cocaine; and that he crushed the oxycontin and snorted it because he is a drug addict. All of these statements were irrelevant to the charge of possession of a handgun by a felon. Each of these statements was prejudicial in that they painted Coleman to be a drug user, a fact that could have swayed the jury. This is also compounded by the fact that Coleman was not allowed to stipulate to his prior drug related felony.
Taken individually, these pieces of testimony may seem harmless and not require reversal of Coleman's conviction. The same can be said of Coleman's inability to stipulate to his prior felony. When taken together, however, they are unfairly prejudicial and I would reverse and remand this case for a new trial. BRIEFS FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Department for Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky