Opinion
NO. 2013-CA-001481-MR
01-09-2015
DANIELLE N. MARION APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Mark J. Stanziano Somerset, Kentucky ORAL ARGUMENT FOR APPELLANT: Bethany L. Stanziano Columbia, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Nathan Kolb Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE DAVID WILLIAMS, JUDGE
ACTION NO. 12-CR-00034, 12-CR-00034-0002, 13-CR-00003
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, LAMBERT AND TAYLOR, JUDGES. CAPERTON, JUDGE: Danielle N. Marion appeals from her conviction of Assault in the Second Degree, Burglary in the First Degree, and Robbery in the First Degree following a jury trial. She was sentenced to five years' imprisonment for the assault charge, ten years' imprisonment for the burglary charge, and ten years' imprisonment for the robbery charge, all to run concurrently for a total of ten years. On appeal Marion argues that the court committed reversible error during jury selection by failing to declare a mistrial, by failing to allow impeachment of a witness, and that the jury verdict was clearly unreasonable. The Commonwealth disagrees with Marion's arguments and instead urges this Court to affirm the convictions. After a thorough review of the parties' arguments, the record, and the applicable law, we agree that reversible error occurred; accordingly, we reverse and remand this matter for further proceedings.
Judge Caperton authored this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.
The facts of this case were testified to at a jury trial. On October 31, 2012, Danielle Marion and Barbara Parrish were walking along Leslie Road in Cumberland County, looking for money and a ride into town. First, they approached Freddie Cary's house but Cary refused to give them money and denied their request for a ride into town. Next, Marion and Parrish arrived at Hyland Norris's property and walked up to the barn were they encountered Norris. Norris also refused to give them money or a ride into town. Thereafter, Norris was working in the back of the barn when he was attacked with a blunt object, knocking him to the ground. Norris, an octogenarian, suffered repeated blows with at least one blow to the side of his head. A rock and a hammer were found at the scene on the ground near where Norris testified he had been hit. According to Norris, Marion and Parrish fled after the assault. Norris picked himself up, got into his truck and went to the Balmer's home. Norris asked for a gun, which Balmer did not provide. Instead, Norris waited for the ambulance and Balmer went and detained Marion and Parrish until the police arrived. After being arrested, Marion informed the Sheriff that Parrish was wholly responsible.
Parrish even offered sex in exchange for money, which Cary declined. After being refused, Parrish damaged Cary's van with a key.
The Balmers both testified that they had previously seen the girls walking on the road earlier.
Parrish pled guilty to reduced charges and agreed to testify against Marion in exchange for leniency in sentencing. Parrish testified that on the day in question, she was high on morphine and that she was a drug addict. She testified that she went out to Leslie Road to get money from Brady Cary by offering to have sex with him. After leaving Cary's place, she and Marion went to Norris's farm. They went into the barn and asked him for a ride into town. After he refused, the two went outside the barn and discussed robbing him. Parrish testified that Marion picked up a rock that was in the barn and used that rock to hit Norris. Parrish agreed that this was the rock previously identified by the Sheriff at the scene. Parrish testified that Marion pointed out a hammer to Parrish, and she used the hammer to hit Norris. Prior to picking up the hammer, Parrish also carried a rock from outside the barn in order to attack Norris and rob him. Parrish claimed that she and Marion intended to rob Norris. Parrish acknowledged that by testifying she had two years removed from her sentence, leaving her with a sentence of 18 years and eligible for parole after 20% of her sentence was served. Parrish acknowledged that the use of the drugs could have impacted her memory.
It seemed that a second rock was not found by the Sheriff inside the barn.
This is in comparison to the original charges, which Marion alleges, mandated that she serve 85% of the sentence.
After hearing the evidence, the jury convicted Marion of Assault in the Second Degree, Burglary in the First Degree, and Robbery in the First Degree. She was sentenced to five years' imprisonment for the assault charge, ten years' imprisonment for the burglary charge, and ten years' imprisonment for the robbery charge, all to run concurrently for a total of ten years. It is from this that she now appeals.
On appeal Marion argues: (1) the court abused its discretion in failing to strike a prospective juror for cause who repeatedly expressed the belief that defense counsel's job was to prove that the defendant was innocent; (2) the court erred in failing to declare a mistrial after the complaining witness repeatedly left the witness stand during his testimony; (3) the court erred in failing to allow defense counsel the opportunity to impeach Parrish with conduct underlying her prior misdemeanor convictions for theft; and (4) the guilty verdict must be set aside because it was clearly unreasonable for the jury to find the defendant guilty.
In response, the Commonwealth argues: (1) the court acted within its discretion when it refrained from striking the prospective juror for cause; (2) the court acted within its discretion when it denied Marion's motion for a mistrial; (3) the court properly prevented cross-examination into a misdemeanor theft conviction; and (4) the court properly denied Marion's motion for a directed verdict. With these arguments in mind, we turn to the first issue presented, whether the court erred in failing to strike a juror for cause.
First, Marion argues that the court abused its discretion in failing to strike a prospective juror for cause who repeatedly expressed the belief that defense counsel's job was to prove that the defendant was innocent. The Commonwealth disagrees and asserts that the trial court properly exercised its discretion in refusing to strike the juror for cause.
During voir dire, Marion's counsel questioned the venire regarding the burden of proof and whether they believed that a defendant would have to testify in order to prove their innocence. Juror No. 78 responded affirmatively, that the defendant was required to prove herself innocent. When informed that this belief was incorrect and when asked if he could set aside that belief and follow the law as instructed by the court that it was the Commonwealth's burden at all times to prove the guilt of the defendant, the juror reiterated that "I think it is your job to prove her innocence." After eliciting responses from other jurors, and reiterating that the presumption of innocence follows Marion into the jury room, counsel asked Juror No. 78 if his opinion had changed. Juror No. 78 replied that it had not.
Marion's counsel then requested a bench conference and moved to strike the juror for cause. The trial court called the juror to the bench and asked him if he could follow the law as instructed that the Commonwealth was required to prove guilt beyond a reasonable doubt, that defense counsel carried no burden, and that he could not hold the failure to testify against the defendant; after listening to the juror's answers, the court denied the motion to strike for cause. Defense counsel then indicated on the record prior to the jury being seated on which juror she would have used a peremptory strike. This juror was subsequently selected to sit on the jury which convicted Marion.
At the outset, we note that Kentucky Rules of Criminal Procedure ("RCr") 9.36(1) provides that, "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." We review a trial court's denial of a motion to strike for cause under an "abuse of discretion" standard. Ratliff v. Commonwealth, 194 S.W.3d 258, 266 (Ky. 2006).
While the right to an impartial jury is a fundamental constitutional right, "A potential juror should be excused for cause only when the juror cannot conform his/her views to the requirements of law and render a fair and impartial verdict." Id. Ultimately, "It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause." Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky. 1958). "The court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor. There is no 'magic question' that can rehabilitate a juror as impartiality is not a technical question but a state of mind." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007). Consequently, determining the credibility of the juror's answers is critical. Moreover, our Supreme Court has held that, "If after expressing an opinion about an aspect of the case the juror claims to be able to render a fair and impartial verdict based solely on the evidence, a trial court does not necessarily abuse its discretion by allowing that juror to remain on the case." Allen v. Commonwealth, 276 S.W.3d 768, 773 (Ky. 2008).
We believe that the issue presented here is somewhat close. In Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994), the Kentucky Supreme Court explained:
A 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. The test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.Id.
Moreover, in Foley v. Commonwealth, 953 S.W.2d 924, 931 (Ky. 1997), the court clarified that the trial court can utilize follow-up questions without using "magic" questions:
While some of the answers given may have indicated some ambiguity as to the prospective jurors' ability to consider the full range of penalties or to disregard pretrial publicity, the follow-up questioning by the court and counsel clarified any misunderstanding without falling into the forbidden arena of using "magic" questions to rehabilitate. Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 717-18 (1991). The trial court did not err in its refusal to strike these jurors for cause.Id.
Sub judice, when questioned by the court juror No. 78 responded to the court's questions that he could properly follow the court's instructions regarding burden of proof and the presumption of innocence if Marion did not testify. We believe that the court weighed the probability of bias or prejudice based on the entirety of the juror's responses and demeanor and concluded that the juror could render a fair and impartial verdict. We do not believe that such was an abuse of discretion and, accordingly, decline to reverse on this ground.
Marion next argues that the court erred in failing to declare a mistrial after the complaining witness repeatedly left the witness stand during his testimony. During the cross-examination of Norris, Norris became visibly upset and aggressive with defense counsel. Norris then left the stand and walked off into the hall. The court politely told Norris to calm down and return to his seat. Norris ignored the court and continued past the jury and into the hall. The court declared a recess. When Norris returned to the court room the trial court thanked him for coming back to testify and informed him that if he needed a break, all he had to do was look at the court and the court would grant one. The jury returned and the court gave an admonition that only the facts of the case were to be considered, not the emotion displayed by a witness. Cross-examination resumed. Norris became agitated again and, without warning, yet again walked out of the courtroom. The court declared another recess. Counsel moved for a mistrial, which the court denied. Norris returned. The court informed him that if he walked out of the courtroom again while testifying that the court would have to declare a mistrial. After Norris finished testifying, the court told him with the jury present that the court thought Norris did "a fine job, and you answered the questions truthfully, I'm sure." Counsel for Marion then requested an admonition be given the jury regarding the court's endorsement of Norris's testimony. The court gave the admonition, informing the jury that he was simply trying to "salve" and console a witness who had a difficult and emotional time testifying. Marion argues now that these events merited a mistrial.
The court's discretion in determining whether to grant a mistrial was summarized by our Kentucky Supreme Court in Matthews v. Commonwealth, 63 S.W.3d 11 (Ky. 2005):
A trial court only declares a mistrial if a harmful event is of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way. Stated differently, the court must find a manifest, urgent, or real necessity for a mistrial. The trial court has broad discretion in determining when such a necessity exists because the trial judge is "best situated intelligently to make such a decision." The trial court's decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion.Id. at 17 (internal footnotes omitted).
Our appellate courts presume that juries will follow the admonition of a trial court and that the admonition will cure an error in the testimony. Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky. 2004); see also Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). There are two circumstances where we do not presume that the admonition cured an evidentiary error:
There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be
unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant, or (2) when the question was asked without a factual basis and was "inflammatory" or "highly prejudicial."Johnson at 441 (internal citations omitted).
Sub judice the trial court denied counsel's motion for a mistrial but properly gave the requested admonitions to the jury. Given the spectacle that was the witness's behavior and the trial court's endorsement that the witness was doing "a fine job, and you answered the questions truthfully, I'm sure" we believe that the admonition did not cure the error. The court's bolstering of a witness's testimony was unquestionably improper:
In this jurisdiction comments by a trial judge which may reflect upon the credibility of a witness or tend to indicate the court's view of the quality or weight of the evidence are considered improper. Notice is taken of the high regard which jurors generally have of the judge, hence his remarks have great weight and often result in improper influence. Northeast Lumber Co. v. Harris, 220 Ky. 454, 295 S.W. 455; City of Prestonsburg v. Mellon, 220 Ky. 808, 295 S.W. 1064; Louisville & N. R. Co. v. Utz, 297 Ky. 70, 178 S.W.2d 958; Levisa River R. Co. v. Phillips, 312 Ky. 367, 227 S.W.2d 922; Martin v. Tipton, Ky., 261 S.W.2d 809; Collins v. Sparks, Ky., 310 S.W.2d 45.
It is difficult to define due bounds of propriety. The judge need not be a mere automaton or robot, but he should leave to the lawyers the development of the case and be cautious and circumspect in his participation and conduct and control the proceeding in a manner that will give it the atmosphere of impartiality. 53 Am.Jur., Trial, §§ 74, et seq; 88 C.J.S. Trial § 48 et seq; 1 Thompson on Trials, §§ 218-220. But the participation or intrusion by the judge may not be prejudicial under the particular circumstances of the case and will not justify a reversal
of a judgment on that account. Although the participation of the trial judge in this case was voluble, under theChism v. Lampach, 352 S.W.2d 191, 194 (Ky. 1961).
circumstances of the case we do not regard it as prejudicial to the rights of the defendant.
Clearly, the court's commentary that the witness was testifying truthfully invaded the province of the jury and was prejudicial to the rights of Marion. Accordingly, we must reverse and remand on this basis.
Third, Marion argues the court erred in failing to allow defense counsel the opportunity to impeach Parrish with conduct underlying her prior misdemeanor convictions for theft. In support thereof, Marion argues that the trial court wrongly followed Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010), instead of the Kentucky Supreme Court's recent decision of Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013), which was decided four months prior to her trial and would have permitted the impeachment.
The Commonwealth argues that this matter is distinguishable from Allen and asserts that this matter is unpreserved, as Marion primarily relied upon her constitutional rights when objecting to the trial court, did not mention KRE 608 and instead had a discussion regarding KRE 609 with the Commonwealth and the court. We disagree that this matter is unpreserved. While objecting to the court's ruling, Marion's counsel stated the impeachment would go to the truthfulness of the witness. While Allen and KRE 608 were not discussed, KRE 609 and some of the arguments presented in Allen were discussed during the objection. Thus, the court was presented an opportunity to rule on the objection which is now claimed as error on appeal.
--------
At issue, Kentucky Rules of Evidence (KRE) 608(b) states:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion
of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.Recently, our Kentucky Supreme Court reassessed the interplay between KRE 608 and 609 in Allen. The court set forth the state of the law in light of Childers, infra:
KRE 609(a) states:
(a) General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.
In 2010, this Court held that KRE 608 did not apply to conduct that had resulted in a criminal conviction, which instead is covered by KRE 609. See Childers v. Commonwealth, 332 S.W.3d 64 (Ky.2010). This Court stated: "KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction while evidence relating to impeachment by criminal conviction is governed solely by KRE 609." Id. at 69; see also id. at 72 ("[W]e hold that KRE 608 permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by criminal conviction is governed solely
by KRE 609.")....Thus, under Childers, where the acts in question result in a criminal conviction, they are admissible for character purposes only when KRE 609 allows it. Id.Allen v. Commonwealth, 395 S.W. at 462-63.
Under Childers, the acts Allen sought to ask about resulted in convictions and thus are covered only by KRE 609, which only allows inquiry into whether the witness is a convicted felon. If the witness admits the felony conviction, then that is the end of the inquiry; if the witness denies the conviction, then extrinsic proof of the conviction may be admitted. Unlike the federal rule, KRE 609 does not allow proof that the witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty.
The Allen Court recognized the disparity in the admissibility of evidence of crime versus mere conduct created by such an interpretation of our rules of evidence, and held:
Nothing in the language of KRE 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by extrinsic evidence, simple inquiry about that conduct should be unacceptable. KRE 608(b) says nothing about barring "inquiries" into specific behavior, and actually expressly allows them on cross-examination if the behavior reflects on the witness's character for truthfulness. Instead, the rule only says that such conduct may not be proved by extrinsic evidence, except as allowed under KRE 609.Id. at 463-64.
Sub judice, the court erred in not permitting cross-examination into the conduct underlying the misdemeanor convictions for theft when counsel explained it would go to the witness's truthfulness. We must now analyze whether this error was harmless or not:
The test for harmlessness is whether the error substantially swayed the verdict. The inquiry is not simply whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.Allen at 467 (internal citations omitted).
Sub judice, the jury was presented evidence that Parrish was high on morphine when she attacked Norris, that she alleged that Marion also attacked Norris, that her memory was impaired, that she was a drug addict, and that she was testifying for leniency in sentencing and received reduced charges. However, Parrish was not impeached regarding dishonesty. While Norris placed Marion in his barn, Parrish was the witness to inform the jury that Marion participated in the attack of an octogenarian. We believe that this error was not harmless. Accordingly, we reverse and remand this matter for further proceedings.
Last, Marion argues the guilty verdict must be set aside because it was clearly unreasonable for the jury to find the defendant guilty. Marion argues that the witnesses Norris and Parrish presented by the Commonwealth both failed to provide any credible evidence of her participation in the charged crime. Marion argues that Norris, who had his back turned to her and Parrish at the time of the attack, had no way of knowing who or what hit him. Parrish, an admittedly disreputable person, testified in exchange for leniency and acknowledged hitting Norris and testified that she and Marion both had rocks prior to her picking up the hammer, although only one rock was found at the scene. Thus, Marion argues that the jury's verdict of her guilt is contrary to the evidence.
In assessing whether Marion was entitled to a directed verdict, on appellate review "the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When confronted with a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true but reserving to the jury questions as to the credibility and weight to be given to such testimony. Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky. 2010).
We agree with the Commonwealth that Marion was not entitled to a directed verdict. As discussed in Paulley, supra, it was the province of the jury to weigh the credibility of the testimony and they could choose to believe that Marion actively participated in the crimes against Norris. As such, the trial court did not err.
In light of the aforementioned, we reverse and remand.
LAMBERT, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Mark J. Stanziano
Somerset, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Bethany L. Stanziano
Columbia, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Nathan Kolb
Frankfort, Kentucky