Opinion
NO. 2012-CA-000528-MR
06-21-2013
DUANE CRANMO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Andrew Green Cincinnati, Ohio BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 11-CR-00475
OPINION
AFFIRMING
BEFORE: COMBS, MAZE, AND NICKELL, JUDGES. COMBS, JUDGE: Duane Cranmo appeals the judgment of the Campbell Circuit Court which convicted him of assault in the third degree, disorderly conduct, resisting arrest, and being a persistent felony offender in the first degree. After our review, we affirm.
On July 4, 2011, Cranmo, along with several of his friends and relatives, attended a concert at the Funny Bone comedy club in Newport on the Levee (the Levee), a shopping and entertainment complex in Campbell County. In the early morning hours, an altercation broke out inside the club, which is on the second level. Neither Cranmo nor any member of his party was involved in the altercation. However, they were part of the crowd that then spilled outside to the patio of the Funny Bone. The crowd was large and raucous, and Levee security was summoned. Unable to disperse the crowd, Levee security requested assistance from the Newport Police Department (NPD).
Corporal Larry Long and two other officers, who happened to be working a special detail at another establishment in the Levee, were the first to arrive. More NPD followed. The officers' main objective was to disperse the crowd. In the process, two individuals who were not associated with the Cranmo party were arrested and led away.
The parties dispute what led to Cranmo's arrest. The Commonwealth asserts that Cranmo was loudly yelling profanities and threats in order to incite the already unruly crowd. Corporal Long warned Cranmo that if he did not stop, he would also be arrested. When Cranmo did not stop, Corporal Long enlisted help from other officers to arrest Cranmo.
Cranmo, however, alleges that he and his party were leaving as directed by the police. His brother asked Corporal Long to exercise caution around Cranmo's girlfriend because she was eight-months' pregnant. He claims that Corporal Long and Cranmo then engaged in an exchange of profanities.
What is undisputed is that Corporal Long was at the top of the stairs leading from the patio of the club to the street level. Some exchange of words took place between Corporal Long and Cranmo just as Cranmo was proceeding down the stairs. When Cranmo reached the bottom, Corporal Long shouted to Officer Roller, who was on the street level, and instructed him to arrest Cranmo. Officer Roller grabbed Cranmo's arm and said, "Put your hands behind your back; you're under arrest." Officer Roller testified that Cranmo jerked his arm away. At that time, Officer Bucchi approached, and Officer Roller asked for his assistance. Both officers struggled to get Cranmo's hands behind his back. By that point, Corporal Long had reached the street level; he grabbed Cranmo from behind in a bear hug motion. Cranmo elbowed Corporal Long in the jaw several times. Other police officers came to assist. They maneuvered Cranmo to the ground, hitting him in the process. Eventually, the police officers were able to put Cranmo in handcuffs and escort him to jail.
The Campbell Circuit Court held a jury trial on January 10 and 11, 2012. The jury viewed surveillance video footage from the incident at the Levee. It did not have audio; the two versions of what happened were presented by the Commonwealth and by Cranmo. Corporal Long and several other officers testified that Cranmo had incited the crowd and resisted arrest. Cranmo presented witnesses who testified that Cranmo had not behaved in a way to provoke the police into arresting him. Cranmo testified that he had been attacked and arrested, and he denied having elbowed Corporal Long in the face. Nonetheless, the jury convicted Cranmo of third-degree assault, disorderly conduct, and resisting arrest. Because the jury found that Cranmo was a persistent felony offender in the first degree, he received a sentence of incarceration of one year, enhanced to ten years. This appeal follows.
Cranmo presents several arguments to support the one claim in his appeal - that he received an unfair trial. He argues that the cumulative prejudicial effect of the errors warrants a new trial. Because none of the errors was prejudicial, we disagree.
Cranmo's first argument is that he was prejudiced during voir dire when the trial court held a probation revocation for a jail inmate. Voir dire was halted because a juror was missing. During that hiatus, the court held the hearing, which lasted less than ten minutes. The awaiting jury was not sequestered; the court informed the potential jurors that they could either stay in the courtroom or leave. A defendant wearing prison garb was brought in the courtroom. The defendant's counsel stipulated to some affidavits. Counsel also made a mitigating argument about the defendant's desire to provide for his family. The court declined to make a ruling from the bench, and the defendant left.
At the time, Cranmo's counsel objected that having the hearing in front of the potential jurors was prejudicial, but he did not articulate what specifically was prejudicial about it. In his brief, Cranmo argues that it was prejudicial because the defendant was African American - and so is he. Cranmo cites no legal authority to support his argument. It is true that our courts have held that it is prejudicial for a jury to see a defendant in shackles at his trial. Peterson v. Commonwealth, 160 S.W.3d 730, 733 (Ky. 2005). However, we are unaware of any precedent suggesting that the sight of a different defendant in restraints is prejudicial.
Furthermore, in this case, the only similarity between Cranmo and the other defendant was race. The defendant was wearing a jail uniform; Cranmo was clad in street clothes. The defendant was larger and appeared older than Cranmo. The defendant's case dealt with drug possession and violation of probation terms. His counsel stipulated to terms of affidavits, but the jury pool was unaware of the affidavits' substance. We cannot conclude that Cranmo was prejudiced by the very brief appearance of a defendant involved in another case.
Cranmo next argues that his trial was inherently unfair because there were no black jurors in the jury pool. On the day that his trial began, all potential jurors who were summoned were white. It has been long settled that "purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69 (1986) holding modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Three prongs must be fulfilled in order to prove a prima facie case of discriminatory juror practices:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that thisDuren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979).
underrepresentation is due to systematic exclusion of the group in the jury-selection process.
There is no dispute that Cranmo has met the first prong: African-Americans are a distinctive group in Campbell County. However, Cranmo did not present any evidence to the trial court concerning the second and third prongs. The second prong deals with "venires" in the community. Cranmo's argument is based on only one venire - the one that met on the date of his trial. Our Supreme Court has held that personal observation of jury pools from seven trials in one county was insufficient proof of the second prong. Mash v. Commonwealth, 376 S.W.3d 548, 552-53 (Ky. 2012). Furthermore, Cranmo did not offer proof that the jury pool was entirely white because of systematic exclusion of black citizens in Campbell County.
In his brief, Cranmo offers a summary of discussions with the Campbell Circuit Clerk in order to explain the juror selection process. However, because that information is not included in the record, we are not permitted to consider it. Kentucky Rule of Civil Procedure (CR) 76.12(4)(b)(vii). He also provides a census report with his brief. It, too, was not presented to the trial court. Although we are precluded from considering it, we note that our Supreme Court has discussed the import of census information:
Even if this Court were to take judicial notice of the census information showing the number of African Americans in McCracken County, Appellant still has not provided enough information to meet his burden underMash v. Com., 376 S.W.3d at 552.
the second and third prongs of Duren. This Court has held that mere citation to census data, without any other information, is not enough to show underrepresentation or systematic exclusion.
Cranmo urges us to analyze the fairness of the three-prong Duren test. However, he cannot cite any legal authority permitting us to disregard the Supreme Court of the United States. We are bound by its decisions and by those of the Supreme Court of our Commonwealth. See Rule[s] of the Supreme Court of Kentucky (SCR) 1.030(8)(a). Because Cranmo did not provide proof of systematic unfairness in the juror selection process in Campbell County, we are unable to conclude that his trial was inherently unfair.
Cranmo next argues that his due process rights were violated because security employees at the Levee did not preserve video footage from one of its cameras. Two employees testified that there are more than one-hundred security cameras throughout the Levee. All are stationery unless the camera operator who is on duty takes control of them. The operator is only able to maneuver one camera at a time.
On the night of Cranmo's arrest, the operator took control of a camera that was mounted on the sign of the Funny Bone because it was closest to the disturbance. He was able to point the camera (the East camera) at the street during Cranmo's struggle and arrest. However, the East camera did not capture what happened at the bottom of the stairs, where Cranmo claimed that the police attacked him for no reason. The Levee employees testified that if a camera opposite the Funny Bone (the West camera) had been operated, it would have recorded a view of the area at the bottom of the stairs. Instead, because the West camera was not the one being controlled by the operator, the footage that it captured was distant and not useful for identification of people or their actions. The Digital Video Recorder (DVR) used by the Levee's security routinely records over old footage as new footage is recorded. The DVR recorded over the footage from that night, and it was lost.
Cranmo contends that the destruction of the video footage on the West camera violated his due process rights. He presents the three-part test that has been recently discussed by our Supreme Court:
[T]o make out a due process violation where evidence has been destroyed, the defendant must show (1) that the State acted in bad faith in failing to preserve the evidence; (2) that the exculpatory potential of the evidence was apparent before its destruction; and (3) that the evidence was, to some extent, irreplaceable.McPherson v. Commonwealth, 360 S.W.3d 207, 217 (Ky. 2012).
We cannot find a connection between the McPherson test and the case before us. Cranmo admits that the Commonwealth was not responsible for preserving the video footage at the Levee. The footage to be used was selected by Levee employees. Furthermore, the employee who reviewed the footage testified that the West camera did not capture anything that would have been useful to police. The only prong that Cranmo meets is that the footage is irreplaceable. However, he has merely offered speculation as to its arguably exculpatory nature. There was no violation of his due process rights.
Cranmo also argues that the trial court erred by not ordering a mistrial because conversations between witnesses and jurors were reported. We can find no basis for this claim. We have reviewed the record, and the problem to which Cranmo refers was behavior by members of the audience. The court admonished members of the audience because they were disruptive, making loud comments about the video evidence and continually going in and out of the courtroom. After the admonition, there was no indication of further problems. The court did not have an obligation to declare a mistrial.
Cranmo last argues that his trial was unfair because he received ineffective assistance of counsel. The Supreme Court of the United States has provided guidance for evaluating whether counsel was effective. It has prescribed a two-pronged test describing the defendant's burden of proof in these cases:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria must be met in order for the test to be satisfied. The Strickland Court emphasized that reviewing courts should assess the effectiveness of counsel in the light of the totality of the evidence presented at trial and the fundamental fairness of the challenged proceeding. Id. at 695-96.
Cranmo argues that his counsel erred by not being prepared to sufficiently challenge the racial make-up of the jury and by failing to obtain the footage from the West camera. We have scrutinized the conduct of counsel in light of the entire proceeding, and we cannot agree. As already discussed, Cranmo has not proven that Campbell County has systematically eliminated its African-American citizens from jury pools. He has not provided any authority that indicates that his counsel had an obligation to conduct extensive research into Campbell County jury pools. Similarly, we determined that Cranmo has merely speculated about the allegedly exculpatory value of the West camera footage. In fact, his counsel was quite diligent; he obtained a last-minute subpoena of the director of facilities at the Levee, James Craycraft. Craycraft testified and showed the jury pictures of the location that the West camera would have captured.
The jury viewed surveillance video footage that did not include sound. Therefore, Cranmo was able to present testimony about what was said in his encounter with Corporal Long; the Commonwealth presented another, contrary version of the conversation. Several witnesses corroborated Cranmo's story. Cranmo's counsel presented a compelling closing argument in his behalf. The jury - as was its prerogative - chose which version of the story to believe.
We conclude that Cranmo received a fair trial - including effective assistance of counsel. Therefore, we affirm the judgment of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Andrew Green
Cincinnati, Ohio
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky