RONALD MELVIN GOWER v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 1, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002946-MR
RONALD MELVIN GOWER
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE JAMES R. DANIELS, JUDGE
ACTION NO. 98-CR-00004
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge.
Ronald Gower appeals from a conviction in the
McCracken Circuit Court for theft by unlawful taking over $300.00.
Gower received a three year sentence, enhanced to 16 years upon the
verdict of the jury that Grower was a first-degree persistent
felony offender.
On January 9, 1998, the McCracken County Grand Jury
charged Ronald Gower in an indictment with theft by unlawful taking
of over $300.00,1 giving a police officer a false name or address2
and with being a first-degree persistent felony offender.3
The
indictment resulted from the allegation that on December 13, 1997,
at
a
Paducah
Wal-Mart
Supercenter,
Gower
loaded
a
$1,300.00
computer from a shelf into his shopping cart and attempted to leave
the store without paying for it.
Gower had a proof of purchase
sticker from another Wal-Mart and claimed that he was merely
attempting to return the computer; however, the store’s security
video showed Gower entering the store without the computer.
When
police arrived at the scene, Gower gave them an incorrect address.
The PFO indictment was based upon a February 10, 1993, felony
conviction in Caldwell Circuit Court, and three felony convictions
in Los Angeles County, California, in 1983, 1984 and 1985.
Gower
pled
not
guilty
and,
following
a
psychiatric
evaluation regarding his competency to stand trial, on July 26 and
July 27, 1999, the case was tried before a jury.
At the close of
the defense case, Gower was granted a directed verdict on the
giving a false address charge, but was found guilty, but mentally
ill, of theft by unlawful taking of over $300.00.
Thereafter the
jury found Gower guilty on the first-degree PFO charge.
The jury
sentenced Gower to three years on the theft charge, enhanced to 16
years
as
a
result
of
the
PFO
conviction.
The
trial
court
subsequently entered judgment and sentencing in accordance with the
jury’s recommendations.
1
Ky. Rev. Stat.(KRS) 514.030.
2
KRS 523.110.
3
KRS 532.080.
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On appeal, Gower contends that the trial court erred by
limiting his presentation of evidence in support of a choice of
evils instruction and by denying his request for a choice of evils
instruction.
From the commencement of the case, Gower pursued a trial
strategy aimed at presenting a choice of evils defense.
In this
regard, Gower sought to present (1) testimony regarding his dire
economic circumstances, and (2) the testimony of Dr. Michael
Nichols that based upon Gower’s mental disorders and impaired
intellectual functioning, he could well have believed that he had
no choice but to steal a computer to support himself and his
pregnant, homeless wife.
In pretrial rulings, the trial court
limited the presentation in this regard and ultimately denied
Gower’s request for a choice of evils instruction.
In summary, Gower contends that had he been permitted to
present the excluded evidence he would have been entitled to a
choice of defense instruction because (1) Gower and his pregnant
wife were in dire economic circumstances at the time of the
offense; (2) they lived in a friend’s backyard and slept on a
hammock; (3) they went to various offices, including the mayor’s
office, and no one would help them; (4) they had asked “everyone”
for help; (5) it was very cold and they went days without food; (6)
churches would help out with money for a room for one night “but
that was about it”; (7) Gower felt that he had exhausted every
resource available to him; and (8) Gower suffered from mental
disorders and impaired intellectual functioning which led him to
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believe that he had no choice but to steal to support himself and
his pregnant, homeless wife.
The choice of evils statute, Kentucky Revised Statutes
(KRS) 503.030, provides that:
(1) Unless inconsistent with the ensuing sections of this
code defining justifiable use of physical force or with
some
other
provisions
of
law,
conduct
which
would
otherwise constitute an offense is justifiable when the
defendant
believes
it
to
be
necessary
to
avoid
an
imminent public or private injury greater than the injury
which is sought to be prevented by the statute defining
the offense charged, except that no justification can
exist under this section for an intentional homicide.
In order to be entitled to a choice of evils instruction
“the danger presented to the defendant must be compelling and
imminent, constituting a set of circumstances which affords him
little or no alternative other than the commission of the act which
otherwise would be unlawful.”4
The choice of evil defense applies
only to an imminent physical injury, not to a financial or property
injury.5
The option provided by KRS 503.030 must be a choosing on
the part of the defendant which is sufficiently contemporaneous
with the offense sought to be justified so as to be considered a
4
Senay v. Commonwealth, Ky., 650 S.W.2d 259, 260 (1983).
5
Greer v. Commonwealth, Ky. App., 748 S.W.2d 674, 676 (1988).
-4-
part of the res gestae.6
Since "choice of evils" is a defense,
the defendant bears the burden of proving the defense.7
The case of Damron v. Commonwealth8 is analogous to the
present case.
In Damron, the appellant "testified that he escaped
from jail because it was a ‘matter of life or death.’ . . .
that
he was ill while in jail, lost weight, and suffered severe chest
pains . . . had been denied medical attention and felt that ‘it was
serious enough that [his] life was in jeopardy.’"
Despite the
“life or death” circumstances described by Damron – a situation
analogous to Gower’s “dire economic circumstances” – it was held
that "the situation described by Damron is not sufficient to invoke
the provisions of KRS 503.030.
There must be a showing of a
specific and imminent threat to his person in order to justify the
giving of the instruction."9
Gower’s defense theory is missing an essential element of
a choice of evils defense:
the requirement that there be the
threat of a specific and imminent physical injury. The choice of
evils
defense
does
not
provide
circumstances the right to steal.
a
person
in
dire
economic
Thus, the trial court did not
err in denying Gower’s request for a choice of evils instruction.
Moreover the evidence and testimony which Gower complains was
6
Duvall v. Commonwealth, Ky. App., 593 S.W.2d 884, 886
(1979).
7
Beasley v. Commonwealth, Ky. App., 618 S.W.2d 179, 180
(1981).
8
Ky., 687 S.W.2d 138 (1985).
9
Id. at 139; see also Montgomery v. Commonwealth Ky., 819
S.W.2d 713 (1991).
-5-
excluded by the trial court regarding his choice of evils defense
would
not,
if
permitted,
have
warranted
a
choice
of
evils
instruction, and the trial court did not err by excluding the
evidence as irrelevant.
Next, Gower contends that the trial court erred when it
permitted the Commonwealth to introduce abstracts of Gower’s 1983
and 1984 Los Angeles County, California, felony convictions, rather
than the actual convictions, to prove the first-degree PFO charge.
In Count 3 of the January 9, 1998, indictment Gower was
charged with being a first-degree PFO based upon four prior felony
convictions:
(1)
a
February
10,
1993,
robbery
conviction
in
Caldwell County, Kentucky; (2) a January 1, 1985, bank robbery
conviction in California; (3) a March 9, 1984, second degree
burglary conviction in California; and (4) a March 3, 1983, grand
theft
auto
conviction
in
California.
Based
upon
discovery
documents provided by the Commonwealth in support of the California
convictions, prior to trial, Gower objected to the introduction of
the documents supporting the California convictions on the basis
that they were not self-authenticating under KRS 422.040, Kentucky
Rules of Criminal Procedure (RCr) 11.04 and Davis v. Commonwealth.10
In the PFO phase of the trial, the Commonwealth presented
evidence seeking to prove the 1993 Caldwell County conviction and
the 1983 and 1984 California convictions.
Evidence regarding the
1995 California conviction was not presented, and Gower does not
contest the proof regarding the 1993 Caldwell County conviction.
10
Ky., 899 S.W.2d 487 (1995).
-6-
As
proof
of
the
1983
and
1984
California
convictions,
the
Commonwealth proffered the following:
1.
A document captioned “Information” setting forth the
1983 felony charge.
2.
Two documents captioned “Complaint Felony” setting
forth the 1983 and 1984 felony charges, respectively.
3.
A document captioned “Amendment to Complaint 1 Prior
Conviction(s)”
amending
the
1984
felony
charge
to
consider the 1983 conviction.
4.
Two documents captioned “Abstract of Judgment -
Commitment Single or Concurrent Count Form” reflecting
the 1983 felony convictions, respectively.
5.
Two transcripts of the Los Angeles County Superior
Court hearings wherein Gower pled guilty to the 1983 and
1984 felony convictions, respectively.
9.
Two
documents
captioned
“Superior
Court
of
California, County of Los Angeles” reflecting that Gower
was withdrawing his plea of not guilty to the 1983 and
1984 charges, respectively, setting his sentence to those
respective
convictions,
and
reflecting
other
administrative matters.
Each of the foregoing documents bears, on the reverse
side, the stamped Seal of the Los Angeles County, California,
Superior Court and is signed by T. Paris, as Deputy, on behalf of
Executive Officer/Clerk of the Superior Court of California, County
of Los Angeles, John A. Clarke.
The Seal and signature certify
that “The Document to which this certificate is attached is a full,
-7-
true and correct copy of the original on file and of record in my
office.”
The certification is dated June 21, 1999.
However, none
of the documents is certified by the judge, chief justice or
presiding magistrate of the Los Angeles Superior Court.
At
issue
is
whether
the
above-listed
documents
are
sufficient to prove the California convictions.11 Because this case
is identical in every relevant respect to the foreign judgments at
issue in Davis v. Commonwealth12, we agree with Gower that the
documents presented by the Commonwealth are insufficient to prove
a PFO conviction.
The Davis court said that:
Appellant also contends that the introduction and use of
his prior felony convictions in the State of Arkansas
failed to meet authentication standards which would allow
them to be used for the persistent felony offense.
The
prosecution presented four documents which were certified
by the Arkansas court clerk.
These documents, however,
were not exemplified by a judge, as required for a
document
to
be
self-authenticating,
nor
were
they
authenticated by a witness.
KRS 422.040 provides that
11
As an appendix to its brief the Commonwealth attached a
copy of a document bearing the seal of the California Department of
Corrections and certifying that “the attached documents” were
official incarceration records for Ronald Gower.
Neither the
Certification sheet nor the “attached documents” are included among
the trial exhibits, and our review of the PFO phase of the trial
discloses no reference to the California Department of Corrections
records.
We have accordingly disregarded the appendix to the
Commonwealth’s brief; however, we note that it does not appear that
the California Department of Corrections records would have any
relevance to our disposition of this issue.
12
Ky., 899 S.W.2d 487 (1995).
-8-
The records and judicial proceedings of any court
of any state, attested by the clerk thereof in due
form, with the seal of the court annexed if there
be
a
seal,
justice,
or
and
certified
presiding
by
the
magistrate
judge,
of
the
chief
court,
shall have the same faith and credit given to them
in this state as they would have at the place from
which the records come.
Thus, for a court of this Commonwealth to properly give
full faith and credit to the judgment of a court of
another state, certification by that court is required.13
In this case, the documents proffered by the Commonwealth
in support of Gower’s convictions in Los Angeles County Superior
Court lacked “certification by that court”, i.e. certification by
the judge, chief justice or presiding magistrate of the Los Angeles
County Superior Court.
The
Commonwealth
contends
that
the
records
were
admissible as self-authenticating pursuant to Kentucky Rules of
Evidence (KRE) 902(1), KRE 902(4) and KRE 1005. This is consistent
with
the
position
Commonwealth14
in
adopted
cases
by
this
regarding
court
the
jurisdiction
13
14
were
Kentucky
convictions,
convictions,
the
as
Ky. App. 998 S.W.2d 771 (1998).
-9-
of
v.
court
If the 1983 and 1984
opposed
Commonwealth’s
Id. at 489.
Skimmerhorn
admissibility
documents to prove a Kentucky conviction.
convictions
in
to
argument
foreign
would
prevail; however, this is a foreign jurisdiction case and we are
bound by Davis.
We therefore reverse Gower’s PFO I conviction.
Next we consider the remedy to which Gower is entitled
for the Commonwealth’s improper use of the California convictions
in obtaining his PFO I conviction.
“When evidence at trial is
insufficient to sustain a guilty verdict, retrial on the same issue
amounts to double jeopardy.”15
However, whereas a conviction based
on insufficient evidence may require a judgment of acquittal upon
reversal, this is not the rule where the conviction has been set
aside for trial error.
Reversal of a judgment of conviction on the
ground that evidence to support the conviction was erroneously
admitted does not, on grounds of double jeopardy, prohibit a
retrial.16
We are persuaded that the trial court’s permitting of the
Commonwealth to present incompetent evidence in support of the two
California convictions was trial error and did not amount to an
insufficiency of evidence to support Gower’s PFO I conviction.
While we must reverse Gower’s PFO I conviction, that
reversal is due to the admission of improper evidence.
reversal
is
not
because
the
Commonwealth
failed
to
The
present
sufficient evidence to demonstrate that Gower was a first degree
PFO,
but,
rather,
because
the
evidence
of
the
California
15
Davis at 490 (citing Burks v. United States, 437 U.S. 1, 98
S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Hobbs v. Commonwealth, Ky.,
655 S.W.2d 472 (1983).
16
Estes v. Commonwealth, Ky., 744 S.W.2d 425 - 426 (1987)
(citing Commonwealth v. Mattingly, Ky., 722 S.W.2d 288 (1986)).
-10-
convictions was improperly authenticated and therefore incompetent.
In this case, there was sufficient evidence to convict Gower of
being a PFO I.
His California convictions simply needed to be
attested to by the judge, chief justice or presiding magistrate of
the Los Angeles County Superior Court.
the evidence.
This error does not negate
Gower does not contest the verity of the Caldwell
County conviction and, upon remand, if the Commonwealth is able to
produce properly verified proof of the California convictions,
Gower may be retried upon the first-degree PFO charge.
Finally, Gower contends that the trial court erred when
it
sustained
the
Commonwealth’s
objection
to
his
testimony
concerning his claim that a third-person, now deceased, had induced
him to steal the computer by promising to buy the stolen computer
from Gower for $800.00. Gower contends that the deceased’s hearsay
statement was admissible under KRE 803(3) as a statement by a coconspirator and under KRE 804(b)(3) as a statement against penal
interest.
The abuse of discretion standard is the proper standard
of review of a trial court's evidentiary rulings.17
The same
standard applies under the Kentucky Rules of Evidence.18
While Gower raises an interesting hearsay question, we
need not consider the hearsay rules to resolve this issue.
The
17
See Tumey v. Richardson, Ky., 437 S.W.2d 201, 205 (1969);
Transit Authority of River City (TARC) v. Vinson, Ky. App., 703
S.W.2d 482, 484 (1985).
18
Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 102 (1995),
overruled on other grounds, Fugate v. Commonwealth, Ky., 993 S.W.2d
931 (1999); accord United States v. Abel, 469 U.S. 45, 54, 105
S.Ct. 465, 470, 83 L.Ed.2d 450, 459 (1984).
Goodyear Tire and
Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 577 (2000).
-11-
trial court did not abuse its discretion in its ruling in that the
deceased witness’s statements to Gower were irrelevant.
The
significance of the statement is relevant only insofar as it
bolsters Gower’s choice of evils defense. As previously discussed,
however, Gower’s choice of evils defense theory is fatally flawed.
Even
if
the
statement
of
the
deceased
witness
was
otherwise
admissible as a hearsay exception, the trial court nonetheless
properly excluded the statement as irrelevant.
For the foregoing reasons, the judgment is affirmed in
part and reversed in part, and this case is remanded to McCracken
Circuit Court for additional proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathleen K. Schmidt
Shepherdsville, Kentucky
Albert B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
-12-
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