CHARLES RAY GERALD A/K/A JIMMY RAY GERALD v. COMMONWEALTH OF KENTUCKY
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JANUARY 19, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-002544-MR
CHARLES RAY GERALD
A/K/A JIMMY RAY GERALD
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
INDICTMENT NO. 04-CR-00122
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BARBER,1 JUDGE; HUDDLESTON AND PAISLEY, SENIOR JUDGES.2
HUDDLESTON, SENIOR JUDGE:
On November 17, 2004, a Monroe County
Grand Jury handed up an indictment charging Charles Gerald with
two counts of criminal attempt to commit murder3 and three counts
of wanton endangerment in the first degree.4
The charges stemmed
1
Judge David A. Barber concurred in this opinion prior to the expiration of
his term of office on December 31, 2006. Release of the opinion was delayed
by administrative handling.
2
Senior Judges Joseph R. Huddleston and Lewis G. Paisley sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
3
KRS 506.010(4)(b).
4
KRS 508.060.
from events that occurred at Gerald’s residence on November 4,
2004.
Upon arriving at his residence on that date, Gerald
and his then-wife, Margaret Gerald, became embroiled in an
argument during which Gerald poured milk on Margaret, hit her
with a large lamp which caused her to sustain a permanent scar
on her right elbow, and destroyed various items located in the
kitchen.
Margaret was able to retreat to a bedroom and call law
enforcement officers several times.
Sometime during these events, Monroe County Deputy
Sheriff Lucas Geralds decided to telephone Margaret.
Margaret both answered the call.
Gerald and
Deputy Geralds inquired as to
what was transpiring at the residence, to which Gerald replied
“It’s none of your damned business.”
Gerald threatened Deputy
Geralds, saying “You come out here you son-of-a-bitch and I’ll
be waiting for you.”
At this point, Gerald ended the telephone
call, grabbed his rifle and some ammunition and left the house.
Deputy Geralds called back and spoke with Margaret.
Margaret
informed Deputy Geralds that her husband was armed and would
shoot anyone that came on the property.
At this point, Margaret
requested that law enforcement officers come to her home.
Deputy Geralds and three other Monroe County Sheriff’s
deputies, Joe Ford, Paul Turner and Eddie Humes, drove in three
cruisers to the Gerald residence.
Deputy Ford was the first to
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drive onto Gerald’s property, followed by a cruiser occupied by
Deputy Geralds and Deputy Turner and then Deputy Hume’s cruiser.
Upon witnessing the officers driving on his property, Gerald
fired on them with a Ruger .223 caliber rifle.
cruiser was hit three times.
Deputy Ford’s
Just before the first bullet hit
his cruiser, Deputy Ford, who was seated in a normal driving
position, reached over and tilted his head towards the cruiser’s
AM/FM radio.
The first bullet entered the driver’s side
windshield directly above the steering wheel at the window
tinting line, hit Deputy Ford’s left ear and arm, continued
through the Plexiglas partition between the front and rear seats
and shattered the rear window upon exiting.
Two additional
shots struck the driver’s side door post and the driver’s side
mirror.
The other two cruisers were not hit with gunfire.
After being fired upon, the officers did not stop their cruisers
on the property.
Instead, each deputy activated his cruiser’s
emergency lights, radioed that shots had been fired and quickly
exited Gerald’s property.
After Deputies Ford, Geralds, Turner and Hume left
Gerald’s property, Monroe County Deputy Sheriff Donna Branham
arrived.
She exited her cruiser and retrieved a bulletproof
vest from the trunk of the vehicle.
vest, Gerald fired on her twice.
As she was fastening the
One shot hit her cruiser,
causing Deputy Branham to take cover behind the vehicle.
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Deputy
Branham, who injured her knee during these events, retreated
when these shots were fired.
After shooting at the deputy sheriffs, Gerald fled to
a neighbor’s home and surrendered his rifle.
The next morning,
Gerald surrendered to Monroe County Sheriff Jerry Gee.
After
placing Gerald under arrest, Sheriff Gee asked Gerald why he
shot at the deputies.
Gerald informed Sheriff Gee that he shot
at the deputies because they were on his property.
taken to the Monroe County jail.
Gerald was
Subsequently, his property was
searched and seven spent rifle shell casings were found.
During Gerald’s incarceration, Deputy Jailer Paul Lynn
asked Gerald if he wanted anything to eat or if he wanted any
blankets.
Gerald declined both food and blankets.
Deputy
Jailer Lynn then proceeded to ask Gerald, “What happened?
the hell went on?”
What
In response, Gerald stated that he did not
mean to shoot at Deputy Ford and that he was aiming at Deputy
Lucas Geralds.
Gerald further informed Lynn that if Deputy
Geralds came out, “there would be a shooting” and that he was “a
man of my word.”
At his trial, Gerald testified on his own behalf.
Gerald admitted shooting at Deputy Ford’s cruiser, believing
that it was occupied by Deputy Geralds.
Gerald stated that he
shot at the law enforcement officers because “They didn’t have
no business out there.”
Geralds also acknowledged shooting at
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Deputy Branham’s cruiser and further admitted that he was aware
that Deputy Branham, not Deputy Geralds, was the occupant of
that vehicle.
On October 13, 2005, the jury returned a verdict
finding Gerald guilty of one count of criminal attempt to commit
first-degree manslaughter, one count of assault in the fourth
degree and two counts of second-degree wanton endangerment.
The
jury recommended a prison sentence of 10 years for the offense
of criminal attempt to commit first-degree manslaughter and a
prison sentence of 12 months and a fine of $500.00 for each of
the remaining offenses, thus constituting a total prison
sentence of ten years and fines totaling $1,500.00.
On November
10, 2005, a final judgment incorporating the jury’s recommended
sentence was entered.
This appeal followed.
Gerald raises four issues on appeal.
First, he
contends that Monroe Circuit Court erred when it failed to
suppress the statements he made to Deputy Jailer Lynn while
incarcerated.
Gerald argues that his statements to the deputy
jailer were the result of a custodial interrogation and, as
such, were inadmissible under Miranda v. Arizona.5
Gerald further asserts that the circuit court
erroneously applied the “booking exception” established by the
5
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda requires the
express declaration of a defendant’s rights prior to a custodial
interrogation.
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United States Supreme Court in Pennsylvania v. Muniz,6 to admit
his statements.
In Muniz, the Court held that questions asked
of a defendant by law enforcement personnel only to secure the
biographical data necessary to complete booking or pretrial
service activities fall outside the protections granted by
Miranda.7
Such questioning must be reasonably related to the
record keeping or administrative concerns of law enforcement.8
Gerald is correct in his assertion that the “booking
exception” did not authorize the circuit court to admit his
statements to Deputy Jailer Lynn.
His comments to Lynn did not
occur as a result of any booking procedure because Gerald had
already been processed into the Monroe County Jail at the time
he made the statements.
Nevertheless, we need not address the remainder of
Gerald’s argument because we believe that any error in admitting
his statements to Deputy Jailer Lynn is harmless.
Kentucky
Rules of Criminal Procedure (RCr) 9.24 provides that
[n]o error in either the admission or the exclusion of
evidence and no error or defect in any ruling or
order, . . . is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying or
otherwise disturbing a judgment or order unless it
6
496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). The Kentucky
Supreme Court adopted the “booking exception” in Dixon v. Commonwealth, 149
S.W.3d 426 (Ky. 2004).
7
Muniz, id. at 601, 110 S. Ct. at 2650.
8
Id.
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appears to the court that the denial of such relief
would be inconsistent with substantial justice. The
court at every stage of the proceeding must disregard
any error or defect in the proceeding that does not
affect the substantial rights of the parties.
The relevant inquiry under the harmless error
doctrine "is whether there is a reasonable possibility that the
evidence complained of might have contributed to the
conviction."9
Here, there is no reasonable possibility that
Gerald’s conviction was procured because of his statements to
the deputy jailer because Gerald admitted during his own
testimony that he shot at the deputy sheriffs as they entered
his property on November 4, 2004.
Gerald’s own admissions at
trial were sufficient for the jury to convict him.
Although the
circuit court erroneously relied on the “booking exception” in
admitting statements Gerald made to the deputy jailer into
evidence, the error was harmless.
Gerald next contends that the circuit court erred when
it permitted his ex-wife, Margaret, to testify at his trial.
Gerald argues that inasmuch as he was married to Margaret on
November 4, 2004, her trial testimony should have been
suppressed pursuant to the husband-wife privilege contained in
Kentucky Rules of Evidence (KRE) 504.
9
Gerald’s argument fails
Jarvis v. Commonwealth, Ky., 960 S.W.2d 466, 471 (Ky. 1998), quoting Fahy v.
Connecticut, 375 U.S. 85, 86, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173
(1963).
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for two reasons.
First, KRE 504 is inapplicable to Margaret’s
testimony at trial.
Pursuant to KRE 504(c):
Exceptions.
There is no privilege under this rule:
* * *
(2) In any proceeding in which one (1) spouse is
charged with wrongful conduct against the person or
property of:
(A) The other;
(B) A minor child of either;
(C) An individual residing in the household of
either; or
(D) A third person if the wrongful conduct is
committed in the course of wrongful conduct
against any of the individuals named in this
sentence. The court may refuse to allow the
privilege in any other proceeding if the
interests of a minor child or either spouse may
be adversely affected.
Furthermore, this Court has held that marital privilege does not
apply when spousal abuse is involved.10
The events that occurred on November 4, 2004, were
part and parcel a domestic disturbance between Gerald and his
then-wife Margaret. As a result of Gerald’s violent and abusive
actions toward his wife, she called for the assistance of law
enforcement officers.
Five Monroe County Deputy Sheriffs
responded to Margaret’s call for help.
Gerald shot at the
Monroe County Deputy Sheriffs during their attempt to respond to
Margaret’s call for help and investigate her assertion that she
was being abused.
10
The deputy sheriffs are third persons against
Dawson v. Commonwealth, 867 S.W.2d 493 (Ky. App. 1993).
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whom Gerald committed criminal acts during the course of his
wrongful conduct against his spouse.
Since Gerald’s actions
invoked the provisions of KRE 504(c)(2) and prohibited him from
claiming any marital privilege, the circuit court properly
denied the motion to suppress Margaret’s testimony.
Furthermore, Gerald’s assertion of marital privilege
fails because he did not engage in any confidential
communications with his wife.
Gerald’s statement, “You come out
here you son-of-a-bitch and I’ll be waiting for you” was made
over the telephone, directly to Deputy Geralds.
Moreover,
Margaret made the same observations of the shootings that were
made by the deputy sheriffs.
The marital communications
privilege does not prevent a spouse from testifying concerning
observations which anyone else could have made and, in this
case, did make.11
Gerald also contends that the circuit court erred in
admitting a photograph of Deputy Sheriff Joe Ford sitting inside
his bullet-damaged cruiser.
In the photographs, Deputy Ford is
seated in a normal, upright driving position.
Gerald asserts
that this posed photograph fails to depict Deputy Ford in the
same position as he was at the time of the shooting, i.e., bent
down, adjusting his radio.
11
Wadlington v. Sextet Mining Co., 878 S.W.2d 814, 816 (Ky. App. 1994).
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In Gorman v. Hunt,12 the Kentucky Supreme Court held
that the admissibility of a posed photograph is matter within
sound discretion of the trial court, and its ruling will not be
disturbed on appeal except upon clear showing of abuse of
discretion.
In deciding whether to admit a posed photograph,
the circuit court was required to determine whether the
photograph: (1) had been properly authenticated; (2) was
relevant, tending to make the existence of any fact that is of
consequence to the determination of an action more or less
probable than it would be without the photograph; and (3)
whether the probative value of the photograph was not
substantially outweighed by the danger of undue prejudice,
confusion or the needless presentation of cumulative evidence.13
The photograph in question accurately depicts Deputy
Ford’s location in the vehicle at the time Gerald opened fire.
Deputy Ford testified that he is depicted in the photograph in
the same manner in which he was seated when the bullet struck
his cruiser’s windshield. While seated in this normal driving
position, Deputy Ford reached over and tilted his head towards
the cruiser’s radio.
The photograph shows where the bullet
entered the windshield in relation to Deputy Ford’s head and was
relevant to establish the intent of the person who fired the
12
19 S.W.3d 662, 667 (Ky. 2002).
13
Id. at 669.
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shots.
Hence, the circuit court did not abuse its discretion in
admitting the photographs.
Finally, Gerald argues that the circuit court erred
when it instructed the jury on an offense for which he was
convicted, criminal attempt to commit manslaughter in the first
degree.
Gerald argues that the crime of criminal attempt to
commit manslaughter in the first degree is not an offense under
Kentucky law.
The Commonwealth correctly points out that Gerald
failed to properly preserve this argument for appellate review.
RCr 9.54 provides:
No party may assign as error the giving or the failure
to give an instruction unless the party’s position has
been fairly and adequately presented to the trial
judge by an offered instruction or by motion, or
unless the party makes objection before the court
instructs the jury, stating specifically the matter to
which the party objects and the ground or grounds of
the objection.
While Gerald tendered jury instructions which did not
include an instruction for criminal attempt to commit
manslaughter in the first degree, the tendered instructions did
not fairly and adequately present Gerald’s position concerning
this matter.
Furthermore, Gerald failed to object to this
instruction before the court instructed the jury.
The failure
to comply with RCr 9.54(2) has consistently been interpreted to
prevent review of claimed error in the instructions because of
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the failure to preserve the alleged error for review.14
However,
for reasons hereinafter set forth, we will review this argument
under RCr 10.26, which provides that
[a] palpable error which effects 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.
For an error to be palpable, it must be “easily perceptible,
plain, obvious and readily noticeable.”15
A palpable error “must
involve prejudice more egregious than that occurring in
reversible error[.]”16
In fact, a palpable error must be so
serious in nature that if it were uncorrected, it would
seriously affect the fairness of the proceedings.17
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.18
If not, the error cannot be palpable.
14
Commonwealth v. Thurman, 691 S.W.2d 213 (Ky. 1985)
15
Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing BLACK’S LAW
DICTIONARY (6th ed. 1995)).
16
Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005).
17
Id.
18
Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (quoting
Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky. 1969)), overruled in part
on other grounds, Blake v. Commonwealth, 646 S.W.2d 718 (Ky. 1983)).
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In this matter before us, it is clear that the circuit
court committed a palpable error by instructing the jury on the
offense of criminal attempt to commit manslaughter in the first
degree as a lesser-included offense of criminal attempt to
commit murder.
This Court, in the 1997 case of Prince v.
Commonwealth,19 declared that criminal attempt to commit
manslaughter in the first degree is not a criminal offense.
In
Prince, we said that
Prince contends that the jury should have been
instructed on attempt to commit first-degree
manslaughter as a lesser included offense of attempted
murder, since the jury could have concluded that
Prince did not intend to kill Patterson but intended
only to cause him serious physical injury. The
argument is without merit. To be criminally liable
for an attempted crime under KRS 506.010, a person
must intend to commit the crime and take a substantial
step toward the commission of it. To be guilty of
first-degree manslaughter under KRS 507.030(1)(a), a
person must intend to “cause serious physical injury
to another person,” but the actions taken to cause
that serious physical injury must actually kill the
person. Combining the two statutes, a person would
have to, intending only to cause serious physical
injury, take an intentional, substantial step toward
causing an unintentional, unanticipated death, yet not
actually cause death. Such would require an intention
to commit an unintentional act.20
The Illinois Supreme Court put it succinctly when it said that
“[t]here is no such criminal offense as an attempt to achieve an
19
987 S.W.2d 324 (Ky. App. 1997).
20
Id. at 326.
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unintended result.”21
As in Luttrell v. Commonwealth,22 the first
lesser-included offense under attempted murder in facts such as
these is second-degree assault, not first-degree manslaughter.
While it is clear that Gerald was convicted under an
instruction that defines an offense that does not exist under
Kentucky law, it is also clear that Gerald could not have even
been convicted of this offense had he been originally charged
with it in an indictment.
charge
a
necessary
part.23
public
facts
offense
To be valid, an indictment must
in
constituting
the
such
accusatory
part
offense
the
in
and
state
descriptive
Therefore, Gerald’s conviction for criminal attempt to
commit manslaughter in the first degree must be reversed and
this case must be remanded with directions to vacate Gerald’s
conviction for criminal attempt to commit manslaughter in the
first degree.
That portion of the judgment convicting Gerald of two
counts of second-degree wanton endangerment and one count of
assault in the fourth degree is affirmed.
That portion of the
judgment convicting Gerald of criminal attempt to commit firstdegree manslaughter is reversed and this case is remanded to
Monroe Circuit Court for entry of an order vacating Gerald’s
21
People v. Visor, 62 Ill.2d 578, 343 N.E.2d 903, 910 (Ill. 1975).
22
554 S.W.2d 75 (Ky. 1977).
b23 Shackleford v. Commonwealth, 270 Ky. 60, 109 S.W.2d 13 (1937); Lynch v.
Commonwealth, 248 Ky. 210, 58 S.W.2d 408 (1933).
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conviction for criminal attempt to commit first-degree
manslaughter.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ken Garrett
Glasgow, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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