Opinion
NO. 2017-CA-001326-MR
01-18-2019
TARIO WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 16-CR-00581 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: GOODWINE, JONES AND NICKELL, JUDGES. NICKELL, JUDGE: Following an altercation inside the McCracken County Jail in which Tario Williams struck a corrections officer in the head, Williams was charged with and convicted of assault in the third degree and being a persistent felony offender in the first degree. In compliance with the jury's recommendation, Williams received a sentence of eighteen years' imprisonment. He appeals as a matter of right. Following a careful review of the record, we affirm in part, vacate in part, and remand.
Kentucky Revised Statutes (KRS) 508.025, a Class D felony.
Williams raises two allegations of error in seeking reversal. First, he asserts he was denied a fair trial because the Commonwealth sought to bolster the testimony of the complaining witness by introducing evidence of his good character. Second, Williams contends the Commonwealth exceeded the scope of KRS 532.055 during the penalty phase. We will address each in turn.
Williams first asserts the Commonwealth improperly attempted to bolster the credibility of the victim by introducing evidence he previously owned a Christian bookstore. Williams contends this information was irrelevant and unduly prejudicial. We disagree. While it is true evidence of good character may not be elicited until after an attack has been launched on the character of the witness, Brown v. Commonwealth, 983 S.W.2d 513, 515 (Ky. 1999), our review of the record reveals no attempt by the Commonwealth to introduce evidence regarding the victim's character.
The challenged statement came in response to the Commonwealth's general background question to the witness regarding how he was employed prior to becoming a deputy jailer. The witness stated he previously owned and operated a Christian bookstore, drawing an immediate objection from Williams. Williams asserted the testimony was irrelevant and the trial court overruled the objection. Before questioning could resume, Williams requested a bench conference where he stated the witness was about to go into how his family owned a Christian business and the Commonwealth was going to use religion to bolster the witness' credibility and truthfulness. The Commonwealth responded it had simply asked the witness for brief background information and assured the Court it had no intention of developing a religious theme. No admonition was requested, and no further mention of religion appears in the record.
Contrary to Williams' assertion, we discern no prejudicial effect from this unsolicited, isolated, and fleeting comment and no attempt by the Commonwealth to bolster credibility of its witness can be inferred from the unprompted response to an otherwise innocuous question. Further, the failure to request an admonition is generally regarded as trial strategy and therefore amounts to a waiver of the issue on appeal. See Luna v. Commonwealth, 460 S.W.3d 851, 876 (Ky. 2015); Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky. 2005); Hall v. Commonwealth, 817 S.W.2d 228, 229 (Ky. 1991). There was no error during the guilt phase and Williams' conviction is therefore affirmed.
Next, Williams argues the Commonwealth exceeded the scope of KRS 532.055 which permits the Commonwealth, during the penalty phase, to introduce evidence concerning parole eligibility, prior convictions of the defendant, and the nature of the prior offenses for which he was convicted. Williams contends the Commonwealth erred when it introduced the names of prior victims and detailed circumstances of his prior crimes during the penalty phase. Williams admits this allegation of error is unpreserved and requests palpable error review pursuant to RCr 10.26. An error is palpable only if it is "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). To be entitled to relief, the party claiming palpable error must show a "probability of a different result or [an] error so fundamental as to threaten a defendant's entitlement to due process of law." Id. at 3.
Kentucky Rules of Criminal Procedure.
The rule states, "[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."
During the penalty phase, Williams' mother and sister were called to testify on his behalf as character witnesses. Both acknowledged Williams had some anger issues and prior convictions. Pertinent to this appeal, during cross-examination, the Commonwealth questioned Williams' mother, Kim Williams, about his prior convictions. During the exchange, the Commonwealth went into specific detail about the nature and circumstances of Williams' past crimes including the names of the victims. The Commonwealth repeated the names of Williams' victims in its closing argument. Williams asserts these actions were improper and contrary to the mandate set forth in Webb v. Commonwealth, 387 S.W.3d 319 (Ky. 2012), regarding compliance with KRS 532.055 as to the nature of a defendant's prior offenses. We agree.
In Webb, our Supreme Court discussed what evidence is permissible in describing the "nature of prior offenses" in deciding whether the Commonwealth erred in reading the names of Webb's prior victims, five of whom were police officers, during the penalty phase of his trial for assaulting police and corrections officers. Quoting Mullikan v. Commonwealth, 341 S.W.3d. 99, 109 (Ky. 2011), the Supreme Court held
[e]vidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed. We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge. The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i.e., the burglary was of a building as opposed to a dwelling. The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may—especially in rural areas—have prior knowledge about the crimes.Webb, 387 S.W.3d at 330 (emphasis in original). Because the Commonwealth exceeded the scope of KRS 532.055 by not simply conveying the elements of Webb's previous crimes but introducing evidence regarding his victims, the Supreme Court found the existence of manifest injustice and vacated Webb's sentence, remanding for a new penalty phase. We do the same today.
The Commonwealth here clearly exceeded the scope of KRS 532.055 and introduced improper evidence when it divulged specifics of the criminal acts for which Williams was convicted as well as the names of his prior victims. This went beyond conveying the elements of the crimes previously committed. Introduction of the improper evidence was "so egregious as to have resulted in manifest injustice," id., and "carrie[d] such a probability of prejudice as to require reversal of the judgment." Brown, 983 S.W.2d at 515 (citing Ratliff v. Line, 451 S.W.2d 391, 393 (Ky. 1970)). Failure to correct the error "would seriously affect the fairness, integrity, and public reputation of the judicial proceeding." Webb, 387 S.W.3d at 330 (citation and quotation marks omitted). Therefore, we vacate Williams' sentence and remand for a new penalty phase with instructions that evidence of his prior convictions comply with the mandates of KRS 532.055 as set forth in Webb.
For the foregoing reasons, we affirm Williams' conviction but vacate his sentence and remand for a new penalty phase consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky