Opinion
NO. 2015-CA-000730-MR
04-21-2017
DANIEL STOVALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Meredith Krause Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 13-CR-00071 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Daniel Carroll Stovall appeals from an Order of the Boyle Circuit Court denying his Motion to Vacate, Set Aside or Correct Sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Appellant argues that the circuit court erred in not concluding that 1) counsel's failure to seek an instruction on the lesser included offense of first-degree criminal trespass constituted ineffective assistance and 2) a hearing was required to adjudicate the Motion. For the reasons stated below, we find no error and AFFIRM the Order on appeal.
In the interest of judicial economy, we adopt the factual recitation set out in Stovall v. Commonwealth, 2014 WL 7239876 (Ky. 2014). The Kentucky Supreme Court stated,
Parksville Country Store, Hardee's BP, and Old Bridge Golf Club in Boyle County were burglarized all on the same night. Burglaries also continued into neighboring Lincoln County that night. Based on the surveillance video footage obtained from Parksville Country Store, police suspected that one black male and two white males were responsible for the burglaries. It also led police to believe that the men were driving a dark colored sport utility vehicle ("SUV"). As a result, Sergeant Sim Thacker of the Lincoln County Sheriff's Department attempted to pull over a black SUV, but the driver sped up and evaded Sergeant Thacker. Subsequently, police found the SUV abandoned, containing various stolen items from the burglarized stores. Police also found a wallet in the SUV, which contained a photograph of a young boy.
Approximately twelve hours later and one and one half miles from the abandoned SUV, Appellant, a black male, was going from business to business attempting to obtain a ride from someone. Appellant eventually entered a green taxi, which drove approximately one mile before stopping to pick up a white male passenger, Joshua Johnson. Believing that these men matched the description of the burglars, Lincoln County Sheriff Curt Folger and Lancaster Police pulled the taxi over and arrested both passengers.
During the stop, Sheriff Folger noticed that the passengers were dressed the same as the burglars on the surveillance video. Sheriff Folger also discovered a
photograph in Johnson's wallet which was identical to that found in the abandoned SUV. After taking Appellant and Johnson to the police station, law enforcement officers learned that the SUV, Johnson, and Appellant were all from Indiana. Police fingerprinted both suspects and, pursuant to a warrant, obtained DNA samples from Appellant and Johnson. Appellant's fingerprints and DNA matched those on a black plastic bag and gloves found in the SUV.Id. at 1.
Appellant was charged with four counts of first-degree criminal mischief, three counts of third-degree burglary, and two counts of theft by unlawful taking. The matter proceeded to trial, whereupon the jury convicted Appellant on all charges. In accordance with the jury's recommendation, the Boyle Circuit Court sentenced Appellant to 20 years in prison.
Appellant prosecuted a direct appeal to the Kentucky Supreme Court, which affirmed the Judgment. Thereafter, Appellant, pro se, filed a Motion in Boyle Circuit Court to Vacate, Set Aside or Correct Sentence pursuant to RCr 11.42, arguing that he did not receive the effective assistance of counsel at trial to which he was entitled. In support of the Motion, Appellant argued that his counsel improperly failed to seek a jury instruction on the lesser included offense of Kentucky Revised Statute (KRS) 511.060(1), first-degree criminal trespass. He maintained that given the subject nature of "intent", the jury could have reasonably believed from the evidence that Appellant had no intent to commit a crime when he entered or remained at the three locations.
Appellant also raised two additional arguments which are not now before us.
Upon considering Appellant's argument, the Boyle Circuit Court determined that it could be resolved from the record without a hearing. It then rendered an Order denying the relief sought. Specifically, the court determined that a lesser included offense instruction is not proper simply because a Defendant requests it. Rather, such an instruction is required only if, upon considering the totality of the evidence, the jury might have had reasonable doubt as to the Defendant's guilt on the greater offense yet believe beyond a reasonable doubt that the Defendant is guilty of the lesser offense. As to the request for a hearing, the court found that "[t]he record in the instant action is abundantly clear. An evidentiary hearing on the matter is both unwarranted and unnecessary, as is the appointment of counsel." This appeal followed.
Appellant, now through appointed counsel, raises two claims of error. He first argues that the Boyle Circuit Court committed reversible error in failing to conclude that counsel was ineffective in failing to seek a lesser included offense instruction at trial. Appellant also argues that he was entitled to a hearing on the Motion. He seeks an Opinion reversing the Order on appeal and remanding the matter to the Boyle Circuit Court for a hearing on the Motion.
RCr 9.54(1) states,
It shall be the duty of the court to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel. These requirements may not be waived except by agreement of both the defense and the prosecution.This "'rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.'" Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016) (quoting Taylor v. Commonwealth, 995 S.W.2d 355 (Ky. 1999)). While an instruction on a lesser included offense is required if the evidence would support a jury's belief beyond a reasonable doubt as to the defendant's guilt, Swan v. Commonwealth, 384 S.W.3d 77, 99 (Ky. 2012), such an instruction is not required where the evidence does not support the instruction. Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).
In the matter before us, the jury was instructed on three counts of third-degree burglary. Appellant contends that the lesser included offense of first-degree criminal trespass should have been instructed on two of those burglary counts. As the trial court properly noted, first-degree criminal trespass differs from third-degree burglary only in that the latter offense requires proof of "the intent to commit a crime". KRS 511.040(1).
The question before us, then, is whether the Boyle Circuit Court properly determined that the evidence did not support an instruction on the lesser included offense of first-degree criminal trespass. We must answer that question in the affirmative. Such an instruction would have been warranted only if the jury could have reasonably concluded that Appellant had no intent to commit a crime when he entered the buildings and remained within. The Boyle Circuit Court found that the evidence at trial proved beyond any doubt that the Appellant entered the buildings without permission and with the intent to commit a crime. This conclusion is supported by the record and the law. Accordingly, Appellant's trial counsel was not ineffective in failing to request a first-degree criminal trespass instruction, as the evidence did not support the instruction. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Appellant also argues that the Boyle Circuit Court erred in failing to conduct a hearing on the Motion. An evidentiary hearing is not required when the issues presented may be fully considered by reference to the record. Newsome v. Commonwealth, 456 S.W.2d 686, 687 (Ky. 1970). The record herein amply demonstrates that a first-degree criminal trespass instruction was not warranted, and that Appellant's counsel was not ineffective in failing to seek the instruction. We find no error.
For the foregoing reasons, we AFFIRM the Order of the Boyle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky David B. Abner
Assistant Attorney General
Frankfort, Kentucky