CONLEY (CLARENCE D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001628-MR
CLARENCE D. CONLEY, JR.
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 08-CR-00181
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR
JUDGE.
VANMETER, JUDGE: Clarence D. Conley Jr. appeals from the final judgment of
the Campbell Circuit Court sentencing him to ten years’ imprisonment for
1
Senior Judge Joseph E. Lambert 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.
possession of a handgun by a convicted felon, following a jury trial. For the
following reasons, we affirm.
On appeal, Conley raises three claims of error. First, he asserts that
the trial court erred by overruling his objections to the prosecutor’s allegedly
impermissible remarks during voir dire. In particular, Conley argues that the
prosecutor impermissibly defined reasonable doubt by advising the jury that
reasonable doubt does not mean “beyond all doubt” or “beyond a shadow of a
doubt.” We disagree.
Recently, in Cuzick v. Commonwealth, 276 S.W.3d 260, 267 (Ky.
2009), the Kentucky Supreme Court reaffirmed the applicable law as follows:
RCr2 9.56 sets forth the proposition that the jury
should not be instructed as to the definition of reasonable
doubt. In Commonwealth v. Callahan, 675 S.W.2d 391,
393 (Ky. 1984), this Court extended this well-settled
prohibition of defining reasonable doubt to all points
in a trial’s proceedings. In Johnson v. Commonwealth,
184 S.W.3d 544, 549-550 (Ky. 2005), we reexamined
Callahan’s prohibition of defining reasonable doubt and
determined, under the facts in that instance wherein the
Commonwealth attempted to indicate what reasonable
doubt was not, error, if any existed, was harmless.
The Commonwealth, in Johnson, 184 S.W.3d at
548-549, indicated to the jury in a colloquy during voir
dire that reasonable doubt was not the same thing as
“beyond a shadow of a doubt,” and that the prosecution
did not have to prove anything beyond a shadow of a
doubt. To that end, we recognized, “in the very case
that announced the prohibition against defining
reasonable doubt [Callahan], we held that the
prosecutor’s allegedly improper statement, which, at
most, attempted to show what reasonable doubt was not,
2
Kentucky Rules of Criminal Procedure.
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did not amount to a violation of the rule against defining
‘reasonable doubt.’” Johnson, 184 S.W.3d at 549.
....
. . . Indeed, we have recently held that a prosecutor’s
comment that “beyond a reasonable doubt was not
equivalent to beyond all doubt” did not rise to palpable
error. Brooks v. Commonwealth, 217 S.W.3d 219, 225
(Ky. 2007); see also Rice v. Commonwealth, No.
2004-SC-1076-MR, 2006 WL 436123, at *7
(Ky. Feb. 23, 2006) (“Truthfully pointing out that a
‘shadow of a doubt’ is different from ‘beyond a
reasonable doubt’ is not an attempt to define reasonable
doubt. Using examples, however, to point out what is,
or is not, reasonable doubt, is.”).
In this case, the prosecutor stated to the jury during voir dire that “the
standard is not beyond all doubt.” Conley objected, to which the prosecutor
responded that she also planned on telling the jury that reasonable doubt was not
“beyond a shadow of doubt” or “beyond some doubt.” Conley objected again.
The court sustained his objection to the “beyond some doubt” terminology, but
permitted the prosecutor to advise the jury that reasonable doubt did not mean
“beyond all doubt” or “beyond a shadow of a doubt.” The prosecutor also
informed the jury that the attorneys could not define reasonable doubt for them.
Although Conley concedes that his case is governed by Johnson, he
nonetheless cites its dissenting opinion, suggesting that Johnson violated United
States Supreme Court precedent, to support his argument that Johnson should be
overruled. However, “as an intermediate appellate court, this Court is bound by
established precedents of the Kentucky Supreme Court.” SCR3 1.030(8)(a); Smith
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Kentucky Rules of the Supreme Court.
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v. Vilvarajah, 57 S.W.3d 839, 841 (Ky.App. 2000). This court, therefore, is not at
liberty to overrule Johnson or to reject its application to the matter now before us.
Second, Conley avers that the court erred by addressing, in his
absence, a written message sent to the court by the jury during its deliberations.
Although this issue was not preserved below, Conley requests that it be reviewed
pursuant to the palpable error rule. RCr 10.26. We do not agree that he is entitled
to relief.
RCr 8.28(1) provides, in pertinent part:
The defendant shall be present at the arraignment,
at every critical stage of the trial including the
empaneling of the jury and the return of the verdict,
and at the imposition of the sentence. The defendant’s
voluntary absence after the trial has been commenced
in his or her presence shall not prevent proceeding
with the trial up to and including the verdict.
In Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004), the Kentucky
Supreme Court recognized that “[s]o far as the Fourteenth Amendment is
concerned, the presence of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that extent
only.” Id. at 852 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct.
330, 333, 78 L.Ed. 674 (1934), overruled on other grounds by Malloy v. Hogan,
378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). See also See v.
Commonwealth, 746 S.W.2d 401, 402-03 (Ky. 1988) (exclusion of defendant from
witness competency hearing did not violate rights under Kentucky Constitution).
In Soto, a juror notified the court that, while the trial was ongoing, his brother-in-4-
law had discussed the case with him outside the court and over the juror’s protests.
“The judge held an in-chambers hearing on this issue with the juror, the prosecutor,
and defense counsel while Appellant remained in the courtroom.” Soto, 139
S.W.3d at 853. The juror informed the court as to the substance of the discussion
and confirmed that his impartiality would not be affected. See id. “After
questioning [the juror] and eliciting no additional information, defense counsel
moved that he be excused as the alternate juror.” Id. The court denied the motion.
The appellant in Soto argued not that the court erred by overruling his
motion to excuse the juror, “but only that he was entitled to be present at the
hearing on the motion.” Id. However, the Supreme Court held that “Appellant did
not object to his exclusion, and does not suggest how a fair and just hearing on this
issue was thwarted by his absence.” Id. (internal citations omitted).
Here, the jury sent the court a note stating that one of the jurors knew
the Commonwealth’s penalty phase witness “very well” but didn’t feel any
concerns; rather, the juror merely wished to advise the judge. In response, the
court went on the record to address the matter in the presence of counsel for the
defense and the Commonwealth. After the court read the note in its entirety, the
Commonwealth stated it had no objections, and noted that the witness was a
neutral witness. Defense counsel disagreed as to the witness’s neutrality, but
acknowledged that the witness’s credibility was never challenged. Thereafter, with
counsels’ approval, the court sent a written response to the jury, stating: “So long
as juror # [ ] can be objective in determining the appropriate sentence, there is no
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problem.” Subsequently, the jury recommended a sentence of ten years’
imprisonment.
Conley maintains that had he been present when the court addressed
the jury’s note, he could have conferred with counsel as to whether the juror should
be brought into the courtroom for questioning, or whether a mistrial should be
sought. Conley attempts to distinguish the Supreme Court’s holding in Soto from
the case sub judice by arguing that in Soto, the defendant knew he was being
excluded from an in-chambers hearing and failed to object, whereas here, Conley
had no knowledge that the jury sent a note to the court and that the court
subsequently addressed the matter. However, Conley fails to suggest how his
presence would have changed the outcome, given that the witness testified during
the penalty phase of the trial only as to matters of record, such as prior offenses
and parole eligibility. The witness’s credibility was not challenged by Conley, and
it apparently was not at issue. Thus, the court’s decision to retain the juror, in
Conley’s absence, was not erroneous.
Finally, Conley contends that the court erred by recommending parole
conditions in its judgment and sentence. Conley objected to the court’s
recommendation that, as a condition of his future parole, he should be required to
participate in a violent offender treatment program. Thus, recommendation of this
condition was preserved for our review.
Regardless of whether the other conditions to which Conley now
objects are properly before us, “the power to grant parole is a purely executive
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function.” Prater v. Commonwealth, 82 S.W.3d 898, 902 (Ky. 2002) (citing
Commonwealth v. Cornelius, 606 S.W.2d 172, 174 (Ky.App. 1980) (“It has been
settled for many years that the decision as to whether a person serving a sentence
of imprisonment should be paroled is an executive function, not a judicial
one[.]”)). Conley has provided no legal authority to support his contention that a
presiding judge in a case may not recommend conditions to the Parole Board.
Moreover, pertaining to all recommended conditions, whether or not preserved for
appeal purposes, clearly the Parole Board is not obligated to follow any such
recommendation.
The judgment of the Campbell Circuit Court is affirmed.
NICKELL, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, CONCURS WITH RESULT ONLY
AND FILES SEPARATE OPINION.
LAMBERT, SENIOR JUDGE, CONCURRING: I concur in result
only in observance of SCR 1.030(8)(a). My views are expressed in Justice
Cooper’s dissenting opinion in Johnson v. Commonwealth, 184 S.W.3d 544 (Ky.
2005).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky
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