WILLIAMS (CHARLES O.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000070-MR
CHARLES O. WILLIAMS,
A/K/A CHARLES D. WILLIAMS
v.
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 07-CR-00097
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Following a jury trial, Charles D. Williams was
convicted in the Mason Circuit Court of burglary in the second degree and assault
under extreme emotional disturbance. He now brings this direct appeal in which
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
he raises three arguments. The first two relate to remarks made by the prosecutor
in his closing argument. Williams claims that the remarks: a) drew the jury’s
attention to the fact that he had not testified, thereby violating his right to remain
silent, and b) improperly directed the jury to “send a message” by convicting
Williams. He additionally argues that he was entitled to a directed verdict on the
burglary charge because the Commonwealth failed to prove the element of intent.
The charges against Williams stemmed from an episode in which he
attacked his longtime girlfriend, Sherri Marshall, after discovering her in bed with
one of his friends. Marshall and Williams, who had been in an “on again, off
again” relationship for sixteen to seventeen years and had three children, were
estranged at the time. Williams had moved out of Marshall’s apartment to stay
with his childhood friend, Benjamin Chambers.
Williams became suspicious that something was going on between
Marshall and his friend Chambers. Williams walked the four miles from
Chamber’s residence to Marshall’s apartment in the early morning hours of June 1,
2007. According to Chambers, he and Marshall were in bed when Williams
arrived. Williams banged on the door and living room window. He screamed and
shouted, wanting to know if Chambers was inside. Marshall did not open the door;
instead she went to the bedroom and called the police. Meanwhile, Williams broke
the living room window and crawled into the apartment. He then tried to force
open the bedroom door, but Chambers pushed back on the door and prevented his
entry. As Williams pushed on the door, he claimed that he wanted to get his
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billfold although Marshall noted that the billfold was not there. After he failed to
get into the bedroom, Williams began to destroy various items in the living room.
He turned over the television, broke the coffee table and pulled down the miniblinds and curtains. Marshall emerged from the bedroom to try to stop him. He
began calling her names and struck her in the face with his fists. He also struck her
twice in the face with a broken window frame. Marshall ran from the apartment
pursued by Williams who continued to strike her. She eventually returned to the
apartment where Williams tried to strike her again with the window frame. At that
point, the police arrived, ordered Williams to drop the frame and took him into
custody. Marshall suffered injuries to her arms, left hand and legs.
A one-day trial was held, at which Williams did not testify. The jury
did listen to an audiotape of an interview Williams gave to police after his arrest.
Testifying on behalf of the Commonwealth were Sherri Marshall, and the arresting
and investigating police officers. Testifying on behalf of the defense were
Williams’ sister Rose, and Benjamin Chambers. Williams was convicted of assault
under extreme emotional disturbance and burglary in the second degree. He was
sentenced to serve three and five years respectively on these charges, to be run
consecutively for a total of eight years. This appeal followed.
Williams argues that the prosecutor’s closing remarks during the
guilt-phase closing argument impermissibly drew attention to the fact that he had
not testified in his own defense. The remarks in question related primarily to how
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Williams got to Marshall’s apartment, and what he heard upon his arrival. The
prosecutor stated as follows:
I don’t know how Mr. Williams got here in town, over on
the east end where this residence is located. There’s no
testimony about that. There’s no testimony about what
he saw when he arrived at that location, only the
argument of counsel. And really there was no testimony
about how –
Defense counsel objected on the ground that a prosecutor may not comment on a
defendant’s silence. At the ensuing bench conference, the trial court ruled that the
Commonwealth was allowed to comment on what defense counsel had presented
in her opening statement, and that the Commonwealth was also entitled to say that
there had not been any testimony about certain things. The Commonwealth’s
attorney then resumed his closing remarks and made the following statement:
There was no testimony that you heard about the
defendant hearing anything from outside the bedroom
window. What you heard was argument from defense
counsel about that. That’s all.
To determine if a prosecutor’s arguments implicated a criminal
defendant’s right to remain silent, a reviewing court must consider whether the
remarks were “manifestly intended to reflect on the accused’s silence or [were] of
such a character that the jury would naturally and necessarily take [them] as such.”
Bowling v. Commonwealth, 873 S.W.2d 175, 178 (Ky. 1993).
Upon reviewing the prosecutor’s remarks in the context of the entire
trial, we agree with the Commonwealth that the remarks were directly responsive
to statements by Williams’ defense counsel. In her opening remarks, defense
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counsel stated that Williams had walked the four miles to Marshall’s apartment
after he became suspicious when Chambers had not returned home. She stated that
Williams thought “I wonder if he [Chambers] is there now with Sherri.” She stated
that when he arrived at the apartment he saw Chambers’ truck parked outside.
He [Williams] stands by the window [of Marshall’s
apartment]. He can hear from outside what’s going on in
the bedroom. He’ll describe to it, he’ll describe it to you.
He yells to them and knocks on the window “get out of
there,” “come on out here” but gets no response. He then
goes to the front door.
Similarly, in her closing arguments, defense counsel gave a first
person account of the events, including Williams’ purported thoughts and actions,
making statements such as “when I saw his truck outside the apartment” and “I
knocked on the window, and I knocked so hard the window broke and I went
through the window.”
The prosecutor’s remarks drew attention to the fact that no actual
evidence had been offered to substantiate these remarks by defense counsel. The
issue is whether the remarks went too far in also drawing attention to the fact that
Williams had not testified. The statements in this case are very similar to those
which were subject to review in Ragland v. Commonwealth, 191 S.W.3d 569 (Ky.
2006). Ragland was accused of shooting an acquaintance. The jury viewed a
videotaped interrogation of the defendant by police, but he did not testify at trial.
During the guilt-phase closing argument, defense counsel made the following
argument:
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They don’t know the location of the shot. . . . They don’t
know where the shot was fired from. They picked out
five locations that they thought might be best, but they’re
just speculating. They don’t know where this shot was
fired from.
Id. at 588. During his closing argument, the prosecutor made the following
statement:
We’re not saying that the shot was fired from underneath
that bush. You’ve never heard us say the shot was fired
from underneath that bush. . . . That is a place the shot
could have been fired from. It’s a place that has a line of
sight to the porch. It happens to be a place that lines up
very well with the idea that Trent [the victim] is sitting in
this chair kind of angled to the center or maybe looking
over at his friends and gets shot straight across. So it
matches that very well. And it’s a place where it has
those two marks in the ground. But we’re not saying
that’s where it’s fired from. We don’t know where that
shot was fired from. The only person who knows where
that shot was fired from exactly is the person sitting in
that chair over there [indicating Appellant] and he hasn’t
seen fit to tell us.
Id.
On appeal, Ragland argued that the prosecutor’s remarks
impermissibly drew the jury’s attention to his decision not to testify. The Supreme
Court analyzed the remarks at length and concluded that “the prosecutor said
nothing that could be construed as a request that the jury should infer guilt from the
fact that Appellant failed to take the witness stand and assert his innocence, and
that it is only in the most remote sense that the statement could be characterized as
a comment upon Appellant’s failure to testify at trial.” Id. at 590. The Court
instead characterized the statement as “a concession about and an explanation for
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uncertainty as to one aspect of the Commonwealth’s theory of the case and that it
was made in response to defense counsel’s closing argument.” Id. (citations
omitted.) Similarly, in this case, the prosecutor’s remarks drew attention to the
uncertainty surrounding how Williams got to Marshall’s apartment and what he
saw when he arrived. The remarks were also directly responsive to defense
counsel’s closing argument.
The Kentucky and United States Constitutions preserve a criminal
defendant’s right to remain silent. Those documents establish no right of a
defendant to have his lawyer lay out a factual scenario to the jury in the opening
statement, present no proof, and then argue the unproven scenario to the jury in
summation while the prosecutor stands mute. In light of their similarity to the
remarks in Ragland, we conclude that the prosecutor’s remarks in this case did not
impermissibly implicate Williams’ right not to testify.
Williams next argues that the prosecutor made remarks which
constituted misconduct because they violated the prohibition against asking the
jury to “send a message.” In his closing remarks, the prosecutor cast doubt on the
contention that Williams had acted under extreme emotional disturbance, noting
that he laughed and joked during his taped interview with the police after his arrest.
He further told the jury that the evidence did not support defense counsel’s request
for a verdict of not guilty on the burglary charge nor a verdict of guilty for fourthdegree assault. He then made the following statement:
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By returning this verdict, you are going to tell this
defendant . . . [objection by defense counsel] . . . Again,
tell this defendant that he committed a wrong, and the
wrong he committed was burglary in the second degree
and assault in the second degree.
The trial court overruled defense counsel’s objection on the ground
that while it has been held that a prosecutor may not ask the jury to send a message
to the community, this holding did not apply when the jury was asked to send a
message only to the defendant.
Williams relies primarily on a series of cases which hold that “send a
message to the community” comments are improper. See e.g. Brewer v.
Commonwealth, 206 S.W.3d 343 (Ky. 2006); McMahan v. Commonwealth, 242
S.W.3d 348 (Ky. App. 2007). It should be noted, however, that even “send a
message to the community” statements have not been deemed to be palpable error.
See Peyton v. Commonwealth, 253 S.W.3d 504, 518 (Ky. 2008) (citing
Commonwealth v. Mitchell, 165 S.W.3d 131-133 (Ky. 2005) (holding that urging
the jury to make an example out of defendant to help fight the spread of Oxycontin
related crimes was not palpable error), Brewer, 206 S.W.3d at 349-50 (holding that
closing statement urging the jury to show that Owen County has the “backbone” to
stand up to crime and to increase the sentence so that the community can keep “a
hammer” over the heads of defendants does not constitute palpable error).
Williams has also drawn our attention to an unpublished case in which
the Kentucky Supreme Court implied that a “send a message to the defendant”
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remark by a prosecutor might have been reversible error had it been preserved (as
it was in Williams’ case).
The Commonwealth asserts that the comments were
proper because the jury was asked to send a message
only to Appellant, not to the community. We do not
believe that this distinction renders the “send a message”
mantra acceptable. Nonetheless, we cannot say that the
comments constituted an error so fundamental as to
threaten Appellant’s entitlement to due process of law, as
is required to demonstrate manifest injustice. However,
had the issue been preserved, a more rigorous analysis
would have been required. Thus, while such comments
do not constitute manifest error in the instant case, we
note that, generally, any benefit the Commonwealth
perceives in utilizing such an argument is far outweighed
by the risk of reversal on appeal.
Scott v. Commonwealth, 2006 WL 3751391 (Ky. 2006) ( 2005-SC-000100-MR).
“‘Send a message’ statements are impermissible because they
‘tend to cajole or coerce a jury to reach a verdict that would meet the public favor’
or suggests ‘that a jury convict on grounds not reasonably inferred from the
evidence.’” Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky. 2005)
(citations omitted.) On the other hand, prosecutors have wide latitude in their
closing arguments and may attempt to convince jurors that the matter before them
should not be dealt with lightly. Brewer, 206 S.W.3d at 350.
The prosecutor’s remark in this case did not constitute reversible
error. It had neither the effect of pressuring the jury to reach a verdict to meet
public favor, nor did it urge a conviction on grounds other than the evidence. This
conclusion is fully in keeping with the holding of a recent case, Benjamin v.
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Commonwealth, 266 S.W.3d 775, 792 (Ky. 2008), in which the Kentucky Supreme
Court reviewed the statement of a prosecutor who told the jury: “we have to think
about the message that we need to send to this defendant [to] prohibit, to prevent
this type of unlawful activity.” The Court held that the remark did not constitute
reversible error, stating that
[i]t is true that this Court has repeatedly indicated that
“send a message” statements are improper in the
Commonwealth and prosecutors should not engage in
such argument . . . . We reiterate this admonition here,
but note that this isolated statement was hardly egregious.
Benjamin, 266 S.W.3d at 792. The prosecutor’s remark is similarly isolated, and
firmly rooted in his argument that based on the evidence, the jury should not accept
defendant’s theory that his behavior was excusable because he was acting under
extreme emotional disturbance – a theory which the jury did ultimately accept.
Thirdly and finally, Williams argues that the trial court erred in
denying his motion for a directed verdict on the charge of burglary in the second
degree.
On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
. . . [T]here must be evidence of substance, and the trial
court is expressly authorized to direct a verdict for the
defendant if the prosecution produces no more than a
mere scintilla of evidence.
Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991).
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According to Williams, the Commonwealth failed to prove the intent
element of burglary in the second degree. The pertinent statute, KRS 511.030,
provides that “[a] person is guilty of burglary in the second degree when, with the
intent to commit a crime, he knowingly enters or remains unlawfully in a
dwelling.” Williams argues that there was insufficient evidence that he intended to
commit a crime before he entered the apartment. He contends that while he was
suspicious that Chambers was in Marshall’s apartment, he was not certain that he
was present. Furthermore, Marshall, as the only testifying eyewitness, stated that
Williams attempted to enter the bedroom in order to retrieve his billfold. He only
struck Marshall after Chambers prevented him from entering the bedroom and
Marshall tried to prevent him from throwing things around the living room. At that
point, he contends, he was already inside the dwelling and had been provoked.
Our review of the trial record shows that there was ample evidence to
support the trial court’s denial of the motion for a directed verdict. Williams
admits that he was motivated to go to Marshall’s apartment by his suspicion that
she was conducting a secret relationship with Chambers. Indeed, his feelings of
jealousy and sense of betrayal formed a key element of his claim that he acted
under extreme emotional disturbance. He does not dispute that he shouted when
he was refused access to the apartment, that he beat on the door and window, and
then forced his way into the home. This conduct was more than sufficient to
support the jury’s finding that he had entered the apartment with the intent to
commit a crime.
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The judgment of the Mason Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen Buck
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Matthew Robert Krygiel
Assistant Attorney General
Frankfort, Kentucky
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