Opinion
NO. 2018-CA-001631-MR
04-10-2020
JAMESON R. MAYO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 17-CR-00311 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. CLAYTON, CHIEF JUDGE: This case presents two distinct issues for our review. The first question asks whether the trial court properly instructed the jury on the lesser offense after granting "summary judgment" on the charged offense. The second question asks whether palpable error occurs when the prosecution fails to ask the witness a question about parole eligibility. We hold the trial court properly instructed the jury on a lesser charge after finding the Commonwealth failed to offer sufficient proof on the greater charge. We also hold the failure to ask a question is not shocking or jurisprudentially intolerable. Therefore, we affirm the trial court in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2017, Appellant, Jameson R. Mayo, was pulled over by an officer with the Auburn Police Department after a citizen called in a complaint alleging that he was driving in an unsafe manner. Upon arriving on the scene, the officer observed instances of unsafe operation of the vehicle and instituted a stop of the vehicle. Upon approaching the vehicle, the officer observed Mr. Mayo to have glassy eyes and non-reactive pupils. Also, Mr. Mayo was unable to stand still. He continually swayed from side-to-side while the officer observed him. The officer also believed he saw a stub of a marijuana cigarette in Mr. Mayo's hand once he exited the vehicle and smelled the odor of marijuana on Mr. Mayo and about the vehicle. After observing baggies sticking out from a visible cigarette pack, which Mr. Mayo had in his hand, as well as Mr. Mayo's affect and appearance, the officer placed Mr. Mayo under arrest for suspected driving under the influence and possession of controlled substances. After being transported to the police department, Mr. Mayo consented to a blood test, which later revealed he was not under the influence of any of the substances for which the blood sample was tested. Mr. Mayo was ultimately indicted and charged with various traffic offenses, as well as the following:
• Operation of a motor vehicle under the influence of alcohol or drugs;
• Possession of marijuana;
• Possession of drug paraphernalia;
• Possession of synthetic drugs;
• Trafficking in a controlled substance in the first degree, methamphetamine;
• Possession of a controlled substance in the first degree, methamphetamine;
• Trafficking in a controlled substance in the first degree, cocaine; and
• Possession of a controlled substance in the first degree, cocaine.
A jury trial was held in September 2018. Before the jury was selected, the Commonwealth moved to dismiss two of the counts against Mr. Mayo: (1) Possession of a controlled substance in the first degree, methamphetamine; and (2) Possession of a controlled substance in the first degree, cocaine. The trial court granted both motions.
The next day, at the conclusion of proof, Mr. Mayo moved for directed verdict on several counts. His motion for directed verdict as to the possession of marijuana and possession of synthetic drugs counts was granted. He also made motions as to the two trafficking charges. The trial court's response to those motions is what is at issue.
Mr. Mayo presented his motions for directed verdict as to the trafficking charges last. The trial court indicated it would grant the motions for "summary judgment" on those charges because insufficient evidence was presented as to the trafficking element. However, the trial court ruled that it would instruct the jury on the lesser-included offenses of possession as to both counts.
Mr. Mayo argued that the lesser-included charges of possession had been dismissed by the trial court's grant of directed verdict on the trafficking offenses. Yet, the Commonwealth reminded the trial court that, when it moved to dismiss the charged possession counts the day before, it had specifically reserved having the jury instructed on possession should a directed verdict be entered on the trafficking counts.
The trial court instructed the jury on possession and the jury found Mr. Mayo guilty of both counts. The jury also found Mr. Mayo guilty of the various traffic offenses.
During the penalty phase, the Commonwealth presented the testimony of Karen Palmer, a probation and parole officer, who informed the jury that the maximum possible sentence on each possession count was three years. She further testified that, by statute, a person must serve 15% of the sentence before parole eligible on any conviction where the term of incarceration was less than five years.
The jury recommended three years on each possession conviction, to be served concurrently. However, the trial court ordered the sentence to run consecutively for a total term of six years, making Mr. Mayo parole eligible only after serving 20% of his sentence.
Mr. Mayo assigns as error the trial court's act of instructing the jury on the lesser-included possession counts after announcing an intention not to instruct the jury on the trafficking counts. He also argues that the jury received incorrect information in the penalty phase concerning parole eligibility, which likely resulted in prejudice to him. We disagree for the following reasons.
ANALYSIS
1. Instructing on lesser-included offenses after finding insufficient evidence was presented on the greater charges.
We review the trial court's decision regarding instructions under an abuse of discretion standard. Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004). "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). Because the trial court did not grant a directed verdict but decided to instruct the jury on the lesser-included offense of possession instead of trafficking in a controlled substance, we review this decision under an abuse of discretion standard.
Mr. Mayo insists the trial court granted directed verdict on the trafficking counts and, therefore, had no authority to instruct the jury on any lesser-included offenses therein. However, from a review of the proceedings, the trial court clearly never intended to wholly dismiss the trafficking counts, but simply announced its intention not to instruct the jury on trafficking. In other words, the trial court did not intend to enter directed verdicts on the two trafficking counts, and never stated as much, but rather held it was granting "summary judgment." The trial court articulated that the Commonwealth failed to provide sufficient evidence on the trafficking element but provided more than sufficient evidence on the possession element inherent in a trafficking charge.
One of the cases cited by Mr. Mayo supports this conclusion. In Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky. 1978), the Kentucky Supreme Court held that a directed verdict requires a finding that the prosecution failed to prove by sufficient evidence not only the charged offense, but all lesser-included offenses.
A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.Id. Here, the trial court did not believe Mr. Mayo was entitled to a complete acquittal and, therefore, did not grant a directed verdict. Instead, the trial court held that the prosecution failed to adduce sufficient proof on the greater charge but met its burden on the lesser-included charge. So, the trial court declined to instruct the jury on the greater charge of trafficking and simply instructed the jury on the lesser-included charge of possession. This was not an abuse of discretion. Further, tellingly, Mr. Mayo does not argue that insufficient evidence existed for the trial court to give a possession instruction or for him to have been convicted of possession.
Mr. Mayo relies heavily on Blane v. Commonwealth, 364 S.W.3d 140 (Ky. 2012), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015). In Blane, the Kentucky Supreme Court held that the trial court erred in granting a directed verdict only to "revisit" that ruling and allow the prosecution to "amend" its charge, pursuant to RCr 6.16, to remove the element of trafficking within 1,000 yards of a school. Id. at 150-51. This case is different from Blane because the instructed charge was on a lesser-included offense, while it was not a lesser-included offense in Blane. In Blane, the Court held the prosecution's amendment of the charge at the invitation of the trial court was improper because the trial court already acquitted defendant of the charge. Here, the trial court simply declined to instruct the jury on the charged offense and, instead, instructed on the lesser-included offense. The jury was not instructed on an "additional or different offense" as the trial court did in Blane. Id. at 151.
Kentucky Rules of Criminal Procedure.
2. Alleged incomplete testimony during the penalty phase.
As acknowledged by Mr. Mayo, because the issue of testimony given by the probation and parole officer during the sentencing phase is not preserved, it is subject to palpable error review. As stated in Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (citation omitted), an error is palpable only if it is "shocking or jurisprudentially intolerable." "[T]he party claiming palpable error must show . . . [an] error so fundamental as to threaten a defendant's entitlement to due process of law." Id. (citation and internal quotation marks omitted). Such a violation may occur if the prosecution uses incorrect or false testimony and such testimony is material. Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005), as modified on denial of reh'g (Jan. 19, 2006).
In examining the act which is the basis for the allegation of error in this case, the testimony of Karen Palmer, the probation and parole officer, we must determine whether the prosecution used incorrect or false testimony.
It is undisputed that the testimony of Officer Palmer was correct. The parole eligibility for a three-year sentence was 15%. She was asked if the sentences could be run concurrently or consecutively. She responded that they could. All this information was accurate. She was never asked what the eligibility would be if the sentences were run consecutively. Thus, this is plainly not an instance in which incorrect testimony was elicited and then not corrected by the prosecutor. It is also not an instance in which the prosecutor made ambiguous or misleading statements to the jury.
The query is whether a question not asked may be the basis for a due process violation. Perhaps it should be, but this grey area is not addressed in our jurisprudence. For that reason, we do not believe that this error is either shocking or jurisprudentially intolerable.
CONCLUSION
For the foregoing reasons, we affirm.
COMBS, JUDGE, CONCURS.
CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CALDWELL, JUDGE: This case presents two distinct issues for our determination. I agree with the majority on the first issue but dissent on the second issue of incomplete testimony during the penalty phase.
This issue was not preserved for review by contemporaneous objection, and thus the Appellant requests review for palpable error under RCr 10.26.
The use of incorrect, or false, testimony by the prosecution is a violation of due process when the testimony is material. Napue v. Illinois, 360 U.S. 264, 269, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is true irrespective of the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). When the prosecution knows or should have known that the testimony is false, the test for materiality is whether "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005), as modified on denial of reh'g (Jan. 19, 2006).
The palpable error standard exists to allow appellate courts to ameliorate those instances of prejudice they identify, but for which no relief was sought below. The prejudice at hand must be substantial, having satisfied a harmlessness review.
For an error to be palpable, it must be "easily perceptible, plain, obvious and readily noticeable." A palpable error "must involve prejudice more egregious than that occurring in reversible error[.]" A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations omitted).
I agree with Mr. Mayo that the testimony about parole eligibility was prejudicial in that it was incomplete. While the implications of "incorrect" or "false" testimony seem more sinister, the reality is that incomplete testimony can result in the same end. It was, of course, not known at the time of the testimony by the probation and parole officer that the trial court would choose to run the maximum sentences handed down by the jury consecutively, thereby removing them from the KRS 439.340(3)(a) constraint on eligibility for 15% parole eligibility and rendering the testimony incorrect as applied to Mayo. The end result, however, was that the jury was wrongfully informed. I believe it is quite possible that had the jury been told that should the sentences be aggregated to more than five years, the Appellant would only be parole eligible after completing 20% of his term, that the jury may have recommended lesser sentences. Thus, I cannot say that this error was not prejudicial. Loss of liberty is serious and when said liberty is lost unwittingly, as may be the case here, that is egregious. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky
Kentucky Revised Statutes. --------