JASON SCOTT v. COMMONWEALTH OF KENTUCKY and MITCHELL POTTER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 26, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002234-MR
JASON SCOTT
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
INDICTMENT NO. 02-CR-00127
v.
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
NO. 2003-CA-002239-MR
MITCHELL POTTER
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
INDICTMENT NO. 02-CR-00127
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HENRY, AND TACKETT, JUDGES.
DYCHE, JUDGE.
On July 22, 2002, Jason Scott and Mitchell Van
Potter visited the home of Raymond Hamilton.
Scott and Hamilton
had known each other for many years through Scott’s friendship
with Hamilton’s son; it was the first time that Potter and
Hamilton had met.
It was ten o’clock in the evening, and
Hamilton had been drinking beer all day.
Scott accepted
Hamilton’s offer to join him in drinking, but Potter did not.
The three sat together for some time.
At some point
the subject of baseball arose, and Scott mentioned that he would
like to tape up an old baseball bat that he had in the vehicle
outside.
He brought it into Hamilton’s house, and Hamilton gave
Scott some black electrical tape for the bat’s handle.
Later
on, as Hamilton averted his attention to see about a disturbance
outside his home, he was struck numerous times in the head with
the baseball bat.
Hamilton claimed that his wallet was taken
from his back pocket.
Potter and Scott fled the premises.
A
neighbor summoned an ambulance, and Hamilton was taken to the
hospital in Pikeville, then transported to Huntington, West
Virginia, where he underwent surgery and remained for five days.
Potter and Scott were indicted for first degree
robbery and burglary.
Although Scott was initially determined
incompetent to stand trial, that finding was vacated.
The two
were tried together on September 2 and 3, 2003, and found guilty
of first degree burglary.
imprisonment.
Each was sentenced to thirteen years’
Because their appeals have no single issue in
common, they will be considered separately.
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Jason Scott first argues that the trial court erred in
vacating the finding of incompetence.
He concedes that lay
witness testimony is not only admissible but also can be
convincing when a trial court is considering the issue of
competency.
1989).
See Mozee v. Commonwealth, 769 S.W.2d 757 (Ky.
However, Scott insists that the medical opinion
testimony was unanimous, and that the trial court was erroneous
in determining that Scott was competent to stand trial.
We disagree.
The medical testimony, while it was
unanimous concerning Scott’s low intelligence quotient, also
contained evidence that appellant was feigning symptoms.
A trial court is not absolutely bound by the
testimony of medical experts in making a
determination as to competency to stand
trial. A judge is also entitled to consider
the testimony of laypersons and his own
observations and impressions based upon the
conduct and testimony of the accused at the
hearing.
. . . .
While the medical testimony in this case
would certainly support a finding of
incompetency to stand trial, the totality of
the evidence did not require such a finding.
Mozee, supra at 758.
While appellant would prefer the trial
court to base its finding on the medical rather than lay
evidence, he cites no inaccuracy in that lay testimony nor makes
any argument regarding its lack of reliability or credibility.
The trial court properly exercised its prerogative in taking
-3-
into account the totality of the evidence before it.
not disturb that finding.
We shall
See also Jacobs v. Commonwealth, 58
S.W.3d 435, 441 (Ky. 2001); and Gabbard v. Commonwealth, 887
S.W.2d 547 (Ky. 1994).
Scott’s second argument, viz., that the Commonwealth’s
motion to vacate was untimely, is without merit, and we decline
to discuss it further.
See CR 54.01 and 59.05; RCr 8.03; and
Jacobs, supra.
Scott lastly urges that he was unduly prejudiced by
certain remarks made by the prosecution during closing argument.
“In order to justify reversal, the misconduct of the prosecutor
must be so serious as to render the entire trial fundamentally
unfair.
The conduct of the prosecutor in this case was not so
prejudicial as to deprive [appellant] of a fundamentally fair
trial.”
Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996)
(citations omitted).
We thus affirm Scott’s conviction.
Appellant Potter first argues that the trial court
erred in denying his motion for a directed verdict of acquittal.
Potter maintains that he was provoked into assaulting Hamilton
by the latter’s comments that Potter’s ex-wife was a “crack
whore.”
Potter continues that the sole evidence of the extent
of Hamilton’s physical injuries consisted of the victim’s own
testimony.
Potter further contends that the Commonwealth failed
-4-
to prove intent to commit a crime, a statutory element of
burglary.
We have examined the evidence and cannot hold that it
was clearly unreasonable for the jury to find guilt.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
The
photographic evidence of the victim’s injuries was certainly
compelling.
Appellant’s characterization of the victim as
“obnoxious,” belligerent,” “an old mouthy drunk,” “an impaired
sot,” “a fifth grade dropout . . . who was pickled to the gills
with a vast amount of alcohol,” and “a pugnacious sort” cannot
detract from the Commonwealth’s proof that Scott and Potter
committed burglary in the first degree.
KRS 511.020.
The
motions for directed verdict of acquittal were properly denied.
Lastly, Potter asserts that certain prosecutorial
remarks during closing argument resulted in reversible error.
Potter admits that this issue is not preserved but requests
appellate review under the palpable error standard.
RCr 10.26.
Mentioning the failure to present witnesses does not equate with
the verboten comment on a defendant’s right to remain silent.
See Maxie v. Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002).
We
find no palpable error in this regard.
The judgment of the Pike Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT
JASON SCOTT:
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY
IN CASE NO. 2003-CA-002234:
Joseph Lane
Pillersdorf, DeRossett & Lane
Prestonsburg, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
BRIEF FOR APPELLANT
MITCHELL POTTER:
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
Lisa Bridges Clare
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY
IN CASE NO. 2003-CA-002239:
Gregory D. Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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