Opinion
NO. 2017-CA-001926-MR
03-01-2019
JOSHUA FRANCIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 17-CR-00447 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES AND NICKELL, JUDGES. NICKELL, JUDGE: Joshua Francis has appealed from the Kenton Circuit Court's November 20, 2017, entry of a trial order following his conviction at a jury trial for assault in the fourth degree as a lesser-included offense of the originally charged assault in the second degree. Discerning no error, we affirm.
Kentucky Revised Statutes (KRS) 508.030, a Class A misdemeanor.
KRS 508.020, a Class C felony.
The basic facts and procedural history underlying Francis' conviction are simple and undisputed. On March 8, 2017, Francis struck Angel Coffman in the side of the head with a piece of broken brick or rock while she was outside his home, standing several feet from the front door. Coffman suffered a severe laceration to her left ear requiring approximately 100 sutures to repair. Francis never denied striking Coffman. Francis was indicted for assault in the second degree and a jury trial began October 31, 2017. The jury convicted Francis of the lesser-included offense of assault in the fourth degree and recommended a sentence of eleven months' imprisonment. The trial court deviated from the recommendation and sentenced Francis to ten months in jail. This appeal followed. Francis now raises five allegations of trial error in seeking reversal.
I. VOIR DIRE
Francis first contends the trial court erred in refusing to dismiss several prospective jurors for cause based on their responses to questions related to self-defense, standing one's ground, and retreat. Specifically, Francis asserts seventeen members of the venire plainly expressed their belief a person is required to retreat, if possible, before resorting to the use of deadly force, even in a hypothetical situation where the person is in his own home and a perpetrator forcefully and unlawfully enters the residence with the intention of kidnapping the resident's child. Francis believes these potential jurors could not render a fair and impartial verdict on the evidence because they were opposed to application of Kentucky's clear "no duty to retreat" principle. Five of the challenged jurors served on the jury. Francis exhausted all available peremptory strikes, including removal of six of the challenged jurors; he listed eight alternative strikes he would have made had the trial court removed all seventeen of the challenged jurors.
A party may complain on appeal where a trial court erroneously denies a motion to strike a juror for cause, and the party subsequently exercises a peremptory strike on the challenged juror. Shane v. Commonwealth, 243 S.W.3d 336, 340 (Ky. 2007). Later, in Gabbard v. Commonwealth, the Supreme Court of Kentucky further explained to bring a claim under Shane the party "must identify on his strike sheet any additional jurors he would have struck." 297 S.W.3d 844, 854 (Ky. 2009).
Prejudice is presumed where at least one of the prospective jurors the party would have struck did, in fact, sit on the jury. Id. at 855. In such situations, if a trial court denies a defendant's motion to strike the juror for cause and the juror does, in fact, sit on the jury, a party is not required to exercise a peremptory strike to remove the juror to complain on appeal. Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky. 1993). However, the party is still required to exhaust all peremptory challenges. Id. Here, the motion to strike was denied and several of the challenged jurors were later empaneled on the jury. Further, Francis exhausted his peremptory challenges on other veniremen. Consequently, this claim of error was properly preserved.
"A determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination." King v. Commonwealth, 276 S.W.3d 270, 278 (Ky. 2009) (quoting Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002)). A court should excuse a prospective juror for cause "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence[.]" RCr 9.36(1).
Kentucky Rules of Criminal Procedure.
The established "test for determining whether a juror should be stricken for cause is 'whether . . . the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.'" Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004) (quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994)). Where such a showing has
been made, "[t]he court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor." Shane, 243 S.W.3d at 338.Ordway v. Commonwealth, 391 S.W.3d 762, 781 (Ky. 2013) (internal footnote omitted). "Deference must be paid to the trial judge who sees and hears the juror." Commonwealth v. Lewis, 903 S.W.2d 524, 527 (Ky. 1995), as modified on denial of reh'g (Aug. 24, 1995) (citing Wainwright v. Witt, 469 U.S. 412, 425-26, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985)).
Francis does not differentiate between any of the challenged jurors, instead treating them as a single unit based on their similar responses to questioning, arguing their disagreement with the law prejudiced his defense and deprived him of a fair trial. However, "per se disqualification is not required merely because a juror does not instantly embrace every legal concept presented during voir dire examination. The test is not whether a juror agrees with the law when it is presented in the most extreme manner." Mabe, 884 S.W.2d at 671. So long as a juror can conform his views and render an impartial verdict based solely on the evidence and the requirements of the law as instructed by the trial court, disqualification for cause is not required. Here, following Francis' request to strike the seventeen jurors, the trial court questioned the panel to determine whether those who disagreed with the law would be able to apply the law as instructed, regardless of their personal beliefs on the correctness or soundness of that law. No juror indicated he could not do so and no further questions were posed on the subject. Given the deference owed to trial courts in this arena and based on our review of the record, we discern no prejudice and no error in the trial court's refusal to strike the challenged jurors for cause.
II. CROSS-EXAMINATION OF VICTIM
Francis next contends the trial court erred in curtailing his cross-examination of the victim and in excluding evidence tending to show her reputation in the community. During his examination of Coffman, Francis posed questions regarding her finances, drug use, drug trafficking, and promotion of prostitution. The Commonwealth objected to each question on relevancy grounds. Contrary to the trial court's suggestion he was engaging in character assassination, Francis asserted he was seeking to introduce relevant evidence of Coffman's character and reputation in the community to show the jury why Francis disapproved of Coffman, feared her, and did not want her near his house, children, or girlfriend. He argued it was crucial for the jury to hear Coffman's reputation to judge the reasonableness of his fears and belief he needed to defend himself, his home, or his children. The trial court sustained each of the Commonwealth's objections. Francis now asserts the trial court erred.
Under KRE 401, "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant. "This standard is powerfully inclusionary and is met upon a showing of minimal probativeness." Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015). However, even though "relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403.
Kentucky Rules of Evidence. --------
Evidence of Coffman's sources of income and allegations of drug use, potential drug trafficking, and promotion of prostitution was only minimally relevant to any issue in the trial. Because Francis admitted striking Coffman and causing her injuries while both were outside his residence, the only real factual issue was whether the attack occurred after Coffman forcefully entered the residence and attempted to kidnap his son, or if Coffman remained outside the home and never laid a finger on the child. The probative effect of Coffman's history of drug use, drug trafficking, allowing others to pay her bills, or encouraging others to engage in prostitution was slight or non-existent. None of Francis' proposed questioning went to Coffman's character or reputation for violence. Whether Francis disliked Coffman's life choices and, therefore, did not want her around his family is not a fact of consequence to the determination of the crime charged. Thus, as the trial court correctly concluded, it was irrelevant to Francis' self-defense claim. There was no error.
III. PRIOR BAD ACTS EVIDENCE
For his third allegation of error, Francis contends the trial court improperly permitted the Commonwealth to cross-examine him regarding his prior convictions for unrelated crimes, thereby prejudicing the jury and requiring a new trial. We disagree.
KRE 404(b) limits admission of "[e]vidence of other crimes, wrongs, or acts[,]" stating it "is not admissible to prove the character of a person in order to show action in conformity therewith." However, the rule does allow admission of such evidence "[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" KRE 404(b)(1). Although the rule sets out examples of other purposes, "it states the 'other purpose' provision in a way that leaves no doubt that the specifically listed purposes are illustrative rather than exhaustive." Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998) (quoting ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 2.25, p. 87 (Michie 3rd ed. 1993)), as modified on denial of rehearing (Sept. 3, 1998). "For such evidence to be admissible, however, it must be relevant for at least one of these other purposes, and its probative value on that issue must exceed the prejudicial effect of its character-proving aspects." Dickerson v. Commonwealth, 485 S.W.3d 310, 320 (Ky. 2016) (citing Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994)).
"To determine whether evidence of prior bad acts is admissible, we must decide if the evidence is relevant for some purpose other than to prove the criminal disposition of the accused[,] probative as to the actual commission of the prior bad act, and not overly prejudicial under KRE 403." Kerr v. Commonwealth, 400 S.W.3d 250, 260 (Ky. 2013) (internal quotation marks and citations omitted). We review such "evidence in the light most favorable to its proponent, giving the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Major v. Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005) (citing Turpin v. Kassulke, 26 F.3d 1392, 1399, 1400 (6th Cir. 1994)).
The trial court's decisions in these areas are granted "broad discretion" and these decisions should only be reversed "where there has been clear abuse of discretion." Page v. Commonwealth, 149 S.W.3d 416, 420 (Ky. 2004) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996)). "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Webb v. Commonwealth, 387 S.W.3d 319, 324 (Ky. 2012) (quoting Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000))).
Francis proffered a protection of others defense, arguing he struck Coffman to protect his child. His sense of parental duty was the underlying theme for his defense. Seeking to undermine Francis' profession of being a loving and protective father, the Commonwealth sought, and was granted, permission to question him regarding his past issues with flagrant non-support, permitting the child to be truant from school, failure to use child restraints in a vehicle, and endangering the welfare of a minor by having the child with him during an illicit drug transaction. The questioning was brief. It was plainly not intended, nor offered, to prove criminal disposition, and no references were made to any criminal convictions resulting from these incidents. Francis was given the opportunity to deny or defend himself against the Commonwealth's challenges, and did, in fact, do so. These fleeting questions, spanning approximately two minutes over a three-day trial, were not overly prejudicial under KRE 403. There was no abuse of discretion in the trial court's ruling.
IV. JURY INSTRUCTIONS
Francis next argues the trial court erred in denying his requested jury instructions. He believes the jury should have been instructed on all aspects of his defense including self-protection and defense of a dwelling. He also believes he was entitled to an instruction informing the jury he had no duty to retreat. By merely instructing on defense of others, Francis asserts the trial court deprived him of a fair trial. Again, we disagree.
[I]t is the duty of the trial court in a criminal case to instruct the jury on the whole law of the case, RCr 9.54(1), and this rule requires instructions applicable to every state of the case deducible from or supported to any extent by the testimony. Webb v. Commonwealth, 904 S.W.2d 226, 228 (Ky. 1995); Reed v. Commonwealth, 738 S.W.2d 818, 822 (Ky. 1987). A defendant has the right to have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions. Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993). He is entitled to an instruction on any lawful defense that he has, Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997); Sanborn v. Commonwealth, 754 S.W.2d 534, 550 (Ky. 1988), including the defense that he is guilty of a lesser included offense of the crime charged.Thomas v. Commonwealth, 170 S.W.3d 343, 348-49 (Ky. 2005). When the issue presented is whether an instruction is warranted by the evidence presented, appellate courts view the evidence in a light most favorable to the party who requested the denied instruction. Id. at 347. Here, the trial court determined the evidence adduced at trial did not support the giving of Francis' requested instructions on defense of a dwelling, self-defense, and "no duty to retreat." Our review of the record reveals the soundness of the trial court's decision.
Francis tendered jury instructions closely tracking the language in KRS 503.055(1) and (3), which creates a presumption of a "reasonable fear of imminent peril of death or great bodily harm" if the person against whom force is used has "unlawfully and forcibly entered a dwelling[.]" This fear is a predicate for claiming self-defense. KRS 503.050. KRS 503.055 also provides the person using force has "no duty to retreat[.]" Francis asserts it was reversible error to deny his requested instructions.
The facts presented do not support the giving of any self-defense or defense of a dwelling instruction, nor do they support the requested "no duty to retreat" instruction, even when taken in the light most favorable to Francis. Francis was not charged with assaulting Coffman in his home. He was charged with assault committed on the sidewalk in front of his home, after Coffman had left the house and was walking to the curb to sit down. Any potential threat to his person or his home had clearly ended by that time. Nevertheless, Francis pursued Coffman, who had voluntarily vacated the property, grabbing a broken piece of rock or brick from the yard as he went, and striking her while her back was turned. No reasonable person would have felt the use of deadly force was necessary to protect against death or serious physical injury at that point. Quite simply, the proof does not justify an instruction giving Francis a presumption of that belief under KRS 503.055.
Francis also contends he had "no duty to retreat" under KRS 503.050(4) and was entitled to such an instruction. However, the legislature did not intend for "no duty to retreat" to mean the right to pursue an invader who has ceased entering or even being in the residence and has instead fled. The term "retreat" plainly implies a victim of violence has no duty to leave a tormentor's presence, and not that the victim may chase down an oppressor who is retreating. While it is possible Francis stood his ground within the house—assuming Coffman was ever in the house, a fact she denies—he did far more than that when he leapt from the porch, grabbed a nearby object to use as a weapon, and struck Coffman as she walked away from the home. Rather than simply standing his ground, Francis took advantage of Coffman's retreat to take more ground. If Francis' version of events is believed, Coffman's actions might have been threatening and might have justified Francis using force against her to defend himself inside the house. However, when she left the house and walked to the curb, Francis' responsive use of force was no longer warranted. Therefore, we hold he was not entitled to the requested instructions, as the trial court correctly concluded.
V. COMPETENCY OF CHILD WITNESS
KRE 601(b) states:
Minimal qualifications. A person is disqualified to testify as a witness if the trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;"Age is not determinative of competency and there is no minimum age for testimonial capacity." Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002).
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.
Francis claims G.G., a child witness to the events, was incompetent to testify against him, asserting she had difficulty demonstrating an understanding of the importance of telling the truth, was unable to completely recall all the details surrounding the assault, and exhibited a desire to please the party questioning her without comprehension of the import of her responses. Francis claims these shortcomings proved the child witness should have been disqualified from testifying. However, the Commentary to KRE 601 explains:
This provision serves to establish a minimum standard of testimonial competency for witnesses. It is designed to empower the trial judge to exclude the testimony of a witness who is so mentally incapacitated or so mentally immature that no testimony of probative worth could be expected from the witness. It should be applied grudgingly, only against the "incapable" witness and never against the "incredible" witness, since the triers of fact are particularly adept at judging credibility.Commentary to KRE 601, Evidence Rules Study Committee, Final Draft (1989).
KRE 601 begins with a presumption of competency. The rule permits disqualification of a witness only when adequate proof of incompetency is presented. G.G. was ten years old when she testified. The trial judge interviewed her on the record in open court outside the presence of the jury and deemed her competent to testify. Her testimony at trial was lucid and, although shedding a tear when telling the jury how "Josh hit Megan's friend," was otherwise unemotional. While she could not recollect all the specific details surrounding the events of the attack, her limited recollection impacted the credibility of her testimony, not her competency to testify. Hendricks v. Commonwealth, 550 S.W.2d 551 (Ky. 1977). We discern no error.
For the foregoing reasons, the judgment of the Kenton Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Molly Mattingly
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James P. Judge
Assistant Attorney General
Frankfort, Kentucky