SIZEMORE (MICHAEL LUCKY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 17, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002066-MR
MICHAEL LUCKY SIZEMORE
v.
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 07-CR-00104
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND NICKELL, JUDGES; ISAAC,1 SENIOR JUDGE.
CLAYTON, JUDGE: Michael Lucky Sizemore was convicted in the Clay Circuit
Court of manslaughter in the first degree for which he was sentenced to thirteen
years imprisonment. Michael maintains that the trial court erred both when it
denied his motion for a continuance and also when it denied his motions for a
1
Senior Judge Sheila R. Isaac 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.
directed verdict of acquittal. Finding no reversible error in either contention, we
affirm the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2007, in the early morning hours, a fight occurred at
the home of John Sizemore in Clay County. Five individuals were involved in the
fight. One individual, Gerald Sizemore,2 died the following day. The other four
persons are John “Johnny Boy” Sizemore, Eugene Sizemore, Michael “Lucky”
Sizemore [the appellant], and Nathan McDaniel, Jr. They were all charged with
murder. John and Eugene are brothers. Michael is their nephew. And Nathan
McDaniel, Jr., is married to John and Eugene’s sister, Carolyn Sizemore Guth
McDaniel, and hence, is the uncle of Michael and the brother-in-law of John and
Eugene. Other than Gerald, the victim, the individuals lived on Ephram Creek
Road, outside Manchester, Kentucky. John, Eugene, and Nathan lived next door to
each other. In addition, Michael lived with Nathan. The fight happened at John’s
home and in the parties’ yard.
After the fight, Gerald arrived at his home in the early morning
severely beaten, covered with blood, and with a deep gash wound on the right side
of his head. April, his daughter, was at home and came to his assistance. She
testified that he first said that Gary Becknell, her boyfriend, had beaten him. As
his consciousness began to fade, he stated that another daughter’s boyfriend had
injured him. April knew that this accusation could not be the truth since the
2
Although Gerald has the same surname as the three of the defendants, “Sizemore,” no evidence
was provided showing a close family relationship between him and the defendants.
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accused person lived out-of-state. She again asked him who had done this. This
time, she testified that he said something like “it’s that bunch you [referring to his
wife, Bobby Cheryl, who was also present], run around with.”
April then called the police, and Manchester police officer, Marion
Spurlock, came to Gerald’s residence. Gerald’s family members told Officer
Spurlock that they did not know how the injuries occurred or who Gerald was with
that evening. Gerald was transported to Manchester Memorial Hospital and then
airlifted by helicopter to University of Kentucky Medical Center in Lexington.
After surgery, physicians determined that Gerald was brain dead.
Following Gerald’s death, his body was transported to the Kentucky
State Medical Examiner’s Office in Frankfort. An autopsy was performed. The
assistant medical examiner determined that his death had been caused by a blunt
force trauma to the head, that he suffered from a thirteen centimeter-wide
laceration, which cut deeply into his brain, and that he had a subdural hematoma.
In addition, Gerald had contusions, lacerations, and abrasions to the head. In fact,
Gerald had more than twelve injuries to his head and neck. Besides these injuries,
his fifth and sixth ribs were fractured. In all, the examiner found forty-three
injuries to Gerald’s body. The injuries were consistent with him having been
kicked. Later, it was ascertained that the ashtrays found by the police were
consistent with an object used to inflict some of injuries.
Meanwhile, after the conclusion of the interview with Gerald’s
family, Officer Spurlock contacted a television station in Hazard, Kentucky, and
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had the station run a story about the fight in order to get information from the
public. The next day, an anonymous caller, contacted Officer Spurlock and
informed him that Gerald’s car had been seen at John Sizemore’s home on the
night of the attack. Acting on this tip, Officer Spurlock and other officers drove to
Eugene’s home, which is next door to John. Eugene told the police that a fight had
taken place at John’s house. Upon arrival at John’s home, the officers noticed
glass all over the driveway. In addition, they smelled the odor of bleach from the
front of the home and the stepping stones. In the yard, they found a bleach bottle.
They also observed apparent blood stains on John’s front porch. Eventually, John
signed a written consent to search his home. Thereafter, the officers seized several
items and took swabs of the blood spots.
Next, after being advised of his Miranda rights, John agreed to make a
statement to the Manchester Police Department. At about the same time, the police
officers obtained an arrest warrant and another search warrant. They once more
smelled bleach. In addition, they seized [the aforementioned] glass ashtrays and a
barbell. Upon leaving John’s residence, they spoke with Eugene again and Eugene
implicated Michael.
In the course of the investigation, Michael was interviewed four
different times. On August 20, 2007, at the first interview, he told the police that
he did not know anything. The recorded interview was played for the jury. He
stated that he was asleep at the time of the incident and that Eugene woke him and
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told him that someone was beating Johnny Boy. By the time Michael walked over
to John’s home, he claimed the entire fight was over.
Later that day, the police interviewed him for a second time. Again
the recorded interview was played for the jury. This time he said that he awoke
around midnight and saw John with a cut over his eye and a bruise. Michael said
that John told him that Gerald had been beating him and that John had made him
leave. But he still admitted no involvement or that he had even witnessed the
crime. Comparing Eugene and Michael’s statements to the police, it seemed that
Michael’s explanation was inaccurate.
Michael was interviewed for a third time on August 21, 2007. A
recording of this interview was played for the jurors, too. In this interview,
Michael denied knowing anything about the attack on Gerald or that he witnessed
it. Michael, however, did acknowledge that an uncle knocked on his window that
night and said that a man was beating John Boy to death. Michael ran outside and
saw Gerald outside with his car parked sideways. At this point, he ended the
interview.
On that same day, Michael was interviewed for the fourth time. And,
as with the other interviews, this one was played for the jurors. On the recording,
Michael says that he was woken by his Uncle Eugene knocking on his window and
saying that John Boy was being beaten to death. Michael got up and went outside
to find Nathan fighting with Gerald. Michael admitted that after Nathan and
Gerald fell to the ground, Michael kicked Gerald two or three times. Michael also
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reported that he saw John at the door with a ball bat in his hand. Michael claimed
to have held John back because John was saying he was going to kill Gerald.
Further, Michael said that he saw Nathan and Eugene hitting Gerald. He also
mentioned that Gerald had blood coming from a gash on his head and on one of his
arms. Michael alleged that he told Eugene and Nathan to stop hitting Gerald and
that he helped Gerald to his car.
On November 1, 2007, the Clay Circuit Court grand jury indicted
John, Eugene, Michael, and Nathan and charged each of them with murder and
complicity to murder. Three defendants – John, Nathan, and Michael – were tried
separately. The fourth defendant, Eugene, pled guilty. On July 17, 2008, a Clay
Circuit Court jury convicted John of murder, and he was sentenced to thirty years’
imprisonment. Next, on January 12, 2009, Eugene pled to the reduced charge of
manslaughter in the first degree and was sentenced to ten years’ imprisonment. On
July 6, 2009, a Clay Circuit Court jury convicted Nathan of manslaughter in the
first degree and sentenced him to thirty years’ imprisonment. Ultimately, John’s
conviction was affirmed by the Kentucky Supreme Court on November 25, 2009,
but Nathan’s conviction is pending before the Kentucky Supreme Court.
Eugene testified at Michael’s trial. According to his testimony, John,
Gerald, and he were drinking alcohol together on the night of the fight. At some
point, Eugene said that he passed out but awoke to find Gerald beating John. After
asking Gerald to stop, Eugene ran to his mother’s home where Nathan and Michael
resided. Because Eugene had recently had stomach surgery, he did not think he
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could intervene in the fight, so he asked Nathan and Michael to help John. The
three men ran over to John’s home but by that time the fight had broken up.
Without provocation, Eugene stated that Nathan tackled Gerald. Then, Nathan and
Michael dragged Gerald off the porch. As Gerald attempted to get up, Michael
struck Gerald across the waistline with a bar and Gerald fell down. Then, Nathan
used a metal pipe to beat Gerald who fell down once more. Both Nathan and
Michael continued hitting Gerald. Eugene said that he told Nathan and Michael to
stop hitting Gerald and helped him to his car.
Michael, the Appellant, was convicted on September 10, 2009, of
manslaughter in the first degree. An agreement with the prosecution set the
sentence of imprisonment at thirteen years and the judgment was entered by the
Clay Circuit Court on October 5, 2009. Michael now appeals from this judgment.
Michael has two main arguments regarding the appeal. First, he
contends that the trial judge erred by failing to grant a continuance to allow
Michael to subpoena Caroline Guth McDaniel and also by not holding a hearing to
determine whether she would assert her Fifth Amendment right not to testify in the
case. The Commonwealth counters that Michael never subpoenaed Carolyn to
appear during the trial, Michael did not provide an affidavit, as required under
Kentucky Rules of Criminal Procedure (RCr) 9.04, as to what Carolyn would say
prior to making the motion for a continuance, and finally, Michael has not
established that the trial judge abused his discretion.
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Second, Michael contends that under the proffered jury instructions,
the jury could not have possibly found him guilty and that the trial judge erred by
not granting Michael’s motions for a directed verdict of acquittal. Conversely, the
Commonwealth argues that sufficient evidence was presented to allow the trial
judge to deny the motions for a directed verdict of acquittal.
The standard of review and additional relevant evidence will be
provided in the analysis.
ANALYSIS
I. The motion for continuance
The first issue concerns whether the trial court erred in denying
Michael’s motion for a continuance. As previously explained Michael asked for
the continuance so that he could subpoena Carolyn and have a hearing to determine
whether she would assert her Fifth Amendment right not to testify. The facts
presented were that about a month before the trial, Carolyn moved to quash the
Commonwealth’s subpoena requiring her to testify in the case. She argued that she
would assert her Fifth Amendment rights. The trial court granted the motion to
quash her subpoena. Carolyn’s attorney did not notify the defense about the
motion to quash or the court’s ruling. Further, no evidence has been provided that
Michael objected to the entry of the motion to quash the subpoena, protested the
order, or made any other effort to obtain the presence of Carolyn until the third day
of the trial.
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On the third day of the trial, during the direct examination of a police
officer by Michael’s trial counsel, defense counsel asked the officer his
recollections of Carolyn’s statements about what happened the night of the fight.
The Commonwealth objected to the officer answering the question because it
would be hearsay, and the trial court sustained the objection. At that juncture,
Michael requested a short continuance in order to serve a subpoena on Carolyn. In
addition, he contended that the trial judge should have held a hearing to see
whether Carolyn would assert her Fifth Amendment privilege or even had the right
to assert it. He adamantly claimed that Guth’s statements were crucial to his
defense. The trial court denied the motion for continuance ruling that no reason
existed to permit a continuance because Carolyn had already asserted her Fifth
Amendment privilege.
Now, Michael asserts that the trial court’s denial of his motion for a
continuance in order to subpoena Carolyn violates his Sixth Amendment right to
compulsory process for obtaining witnesses in his defense. Several factors
discount his arguments. First, if Sizemore desired the attendance of Carolyn at
trial, he had the right to secure her attendance by having a subpoena issued and
served upon her. This ability to subpoena Carolyn satisfies Sizemore’s right to
compulsory process. Anderson v. Com., 63 S.W.3d 135 (Ky. 2001). And he has
no right to rely upon subpoenas issued and served by the Commonwealth. Id.
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Second, guidance is provided in RCr 9.04 which states that a
continuance may be granted upon “sufficient cause shown.” Michael did not
comply with RCr 9.04. It states in relevant part:
The court, upon motion and sufficient cause shown by
either party, may grant a postponement of the hearing or
trial. A motion by the defendant for a postponement on
account of the absence of evidence may be made only
upon affidavit showing the materiality of the evidence
expected to be obtained, and that due diligence has been
used to obtain it. If the motion is based on the absence of
a witness, the affidavit must show what facts the affiant
believes the witness will prove, and not merely the effect
of such facts in evidence, and that the affiant believes
them to be true. If the attorney for the Commonwealth
consents to the reading of the affidavit on the hearing or
trial as the deposition of the absent witness, the hearing
or trial shall not be postponed on account of the witness’s
absence. If the Commonwealth does not consent to the
reading of the affidavit, the granting of a continuance is
in the sound discretion of the trial judge.
Michael never provided an affidavit in support of his motion for a continuance to
subpoena. And it is speculative to insist that Carolyn would provide any favorable
testimony to Michael or not assert her Fifth Amendment right.
Next, it is well-settled that the grant or denial of a motion for
continuance lies within the sound discretion of the court. See e.g. Fredline v.
Com., 241 S.W.3d 793 (Ky. 2007). Since the ultimate decision to grant a
continuance lies within the sound discretion of the trial court, a conviction will
only be overturned upon a showing of an abuse of that discretion. Hudson v. Com.,
202 S.W.3d 17, 22 (Ky. 2006). And whether to grant a continuance rests on the
particular facts and circumstances of each trial. Snodgrass v. Com., 814 S.W.2d
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579, 581 (Ky. 1991) overruled on other grounds by Lawson v. Com., 53 S.W.3d
534 (Ky. 2001).
Here, Michael has not demonstrated that the trial court abused its
discretion in denying the motion for continuance. The trial judge denied the
motion for continuance based on the facts that it was the third day of the trial and
Guth had already asserted her Fifth Amendment privilege. It appeared that it
would be useless to grant the motion for continuance. Finally, it bears noting that
the Kentucky Supreme Court has recognized that “neither the prosecution nor the
defense may call a witness knowing that the witness will assert his Fifth
Amendment privilege against self-incrimination.” Clayton v. Com., 786 S.W.2d
866, 868 (Ky. 1990). Thus, the trial court did not abuse its discretion in denying
Michael’s motion for a continuance.
II. The motions for a directed verdict of acquittal
Michael moved for directed verdict on both counts of the indictment,
murder and complicity to murder, at the close of the Commonwealth’s case and
renewed the motion at the close of the evidence. But Michael’s motions for
directed verdict did not challenge the jury instructions as to manslaughter in the
first degree. The basis of Michael’s claim is that the evidence suggests that
Nathan, not he, delivered the blows which caused Gerald’s death and there was no
evidence of complicity or conspiracy to kill Gerald. Specifically, Michael
highlights that the medical examiner stated that Gerald was killed by a blow to the
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head, which the evidence does not show Michael inflicted. Rather the evidence
shows that Michael kicked Gerald in the torso but not the head.
At that time, however, Michael did not object to any specific jury
instructions. Therefore, given the lack of preservation of the issue, Michael asks
for review under RCr 10.26 and Kentucky Rules of Evidence (KRE) 103(3). He
maintains that the trial court’s error, under the facts and circumstances of the case,
is palpable error, which affects Michael’s substantial rights and results in manifest
injustice. Alleging that insufficient evidence was provided to convict Michael of
murder or complicity to murder, Michael maintains that the conviction violates his
due process. Insufficiency of the evidence is palpable error that affects a
defendant’s substantial rights. Perkins v. Com., 694 S.W.2d 721, 722 (Ky. App.
1985). Such an error is one that an appellate court is able to correct despite its lack
of preservation. Id.
Because, as acknowledged by Michael, no specific objection to the
jury instructions was made, we must review them under RCr 10.26, that is, a
review for palpable error. For an error to be palpable, it must be “easily
perceptible, plain, obvious and readily noticeable.” Burns v. Level, 957 S.W.2d
218, 222 (Ky. 1997) (citing Black’s Law Dictionary (6th ed.1995)). Further, a
palpable error “must involve prejudice more egregious than that occurring in
reversible error[.]” Ernst v. Com., 160 S.W.3d 744, 758 (Ky. 2005). A palpable
error must be so serious in nature that if it were uncorrected, it would seriously
affect the fairness of the proceedings. Id. Hence, a palpable error analysis requires
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the reviewing court to determine whether it believes that a “substantial possibility”
exists that the result in the case would have been different without the error.
Schoenbachler v. Com., 95 S.W.3d 830, 836 (Ky. 2003) (quoting Abernathy v.
Com., 439 S.W.2d 949, 952 (Ky.1969)). If not, the error cannot be palpable.
When confronted with a motion for directed verdict, the trial court
must draw all fair and reasonable inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that the defendant is guilty, a directed verdict
should not be given. For the purpose of ruling on the motion, the trial court must
assume that the evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such testimony. Paulley v.
Com., 323 S.W.3d 715, 722 (Ky. 2010).
Michael’s argument that he was entitled to a directed verdict is
meritless. Initially, the argument completely ignores the elements of manslaughter
in the first degree. These elements are elucidated in KRS 507.030:
1) A person is guilty of manslaughter in the first degree
when:
(a) With intent to cause serious physical injury to
another person, he causes the death of such person or
of a third person; or
(b) With intent to cause the death of another person,
he causes the death of such person or of a third
person under circumstances which do not constitute
murder because he acts under the influence of
extreme emotional disturbance, as defined in
subsection (1)(a) of KRS 507.020.
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(2) Manslaughter in the first degree is a Class B felony.
Under the instructions provided to the jury, it could find Michael
guilty or not guilty of murder, murder-accomplice, murder-principal or
accomplice, first-degree manslaughter, second-degree manslaughter, reckless
homicide, assault second-degree or assault in the fourth degree. In the end, the
jury found him guilty under the first-degree manslaughter instruction. Therefore,
after hearing the testimony, the jury determined that Michael participated in the
beating of Gerald with the intent of causing serious injury but not death. With
regard to the complicity charge, the jury heard evidence that Michael was present
at the time of Gerald’s beating and that he admitted striking Gerald. Although
Michael argues that he only kicked Gerald in his torso area, Michael testified that
he kicked Gerald when Gerald grabbed his legs. Gerald was behind him when
Michael kicked him. Michael did not believe that he kicked Gerald in the head,
but the jury was free to weigh this testimony and make any reasonable inferences.
Further, Michael’s credibility was undermined when he admitted that he had lied
several times to the police during the course of their investigation.
The trial judge denied the motions for directed verdict because his
belief was that sufficient evidence existed for the jury to consider the evidence to
determine whether a crime had been committed. Our review indicates that his
conclusion that sufficient evidence did exist for the jury to consider was valid, and
thus, no palpable error resulted from the jury’s verdict. The jury had Eugene’s
testimony, other witnesses’ testimony, evidence of markedly inconsistent
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statements from Michael, which he acknowledged, and the medical examiner’s
report of the extreme injuries to Gerald after a severe beating – forty-three injuries
in all.
We finish by noting that when evidence in a criminal trial is
conflicting, the jury is free to consider the evidence and determine its credibility.
Brewer v. Com., 206 S.W.3d 313, 318 (Ky. 2006) (quoting Com. v. Benham, 816
S.W.2d 186, 187-88 (Ky. 1991)). And the trial judge did not fail to meet the
standard in Trowel v. Com., 550 S.W.2d 530, 533 (Ky. 1977) for the denial of a
directed verdict of acquittal. In that case, the Kentucky Supreme Court ruled “[i]f
under the evidence as a whole it would not be clearly unreasonable for a jury to
find the defendant guilty, he is not entitled to a directed verdict of acquittal.” It is
not unreasonable here for the jury to have concluded that Michael was guilty.
Finally, since palpable error requires a higher level of review, and we have already
determined that the trial judge did not err in its conclusion that the jury verdict was
not unreasonable, clearly no palpable error occurred.
CONCLUSION
The Circuit Court correctly denied Michael’s motion for a
continuance and his motions for a directed verdict of acquittal under the facts, law,
and arguments of counsel. Having found no error, we affirm the order of the Clay
Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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