LESLIE LEE LAWSON V. COMMONWEALTH OF KENTUCKY
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AMENDED: OCTOBER 12,200l
RENDERED: MAY 24, 2001
TO BE PUBLISHED
1999-SC-0458-M
LESLIE LEE LAWSON
V.
A P F‘EAL FROM LAUREL CIRCUI
HON. LEWIS B. HOPPER, JUDGE
INDICTMENT NO. 98-CR-0137-001
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
1999-SC-0491
-MR
: HAROLD SANFORD BROWN
V.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HON. LEWIS B. HOPPER, JUDGE
INDICTMENT NO. 98-CR-0137-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A Laurel County Circuit Court jury convicted Appellants, co-defendants in the trial
court below, of second degree arson and second degree burglary and found Lawson to
be a first degree persistent felony offender and Brown to be a second degree persistent
felony offender. The jury recommended that each Appellant serve consecutive terms of
sixty (60) years for the PFO-enhanced second degree arson conviction and twenty (20)
years for the PFO-enhanced second degree burglary conviction. The trial court entered
judgment in accordance with the jury’s recommendation and sentenced each Appellant
to serve a total term of eigtity (80) years imprisonment. Lawson and Brown appeal to
this Court as a matter of right. After a review of the record, we affirm the judgments of
the Laurel Circuit Court.
BACKGROUND
The Laurel County Grand Jury returned an indictment against Appellants
charging each with second degree arson and second degree burglary. The indictment
alleged each Appellant was subject to penalty enhancement as a first degree persistent
felony offender. The charges stemmed from the investigation of a fire started in a
home belonging to Robert Jenkins which substantially damaged one room of the home
and caused smoke and water damage elsewhere in the residence. In the course of the
investigation, Jenkins indicated to the investigating officer, Detective Riley of the
Kentucky State Police, that he suspected Lawson and Brown as the culprits, and
Detective Riley focused his investigation on Appellants. At trial, the Commonwealth
relied upon circumstantial evidence suggesting Appellants unlawfully entered Robert
Jenkins’s home and started a fire. Appellants defended against the charges at trial by
arguing that the Commonwealth failed to satisfy its burden of proof and suggesting that
the fire could have started by accident because no witness nor any physical evidence
placed them inside the Jenkins home.
Karen Jones and Barbara Flannelly, Appellants’ former girlfriends, testified at
trial for the Commonwealth that, while returning from a trip the two couples had taken to
the lake, Lawson noticed Jenkins’s truck and stated “There that SOB is. Let’s get him
while he ain’t home.” Other testimony established that Lawson did not like Jenkins and
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referred to him as a “rat.” Jenkins had worked as a police informant, and had provided
information in the past which resulted in Lawson’s father’s arrest. Flannelly, who had
driven the couples back from the lake on the date of the fire, testified that Lawson
instructed her to drop the men off in Jenkins’s neighborhood around the curve from the
Jenkins home, drive to the house and verify that Jenkins was not home, and then
retrieve Appellants ten (10) to twenty (20) minutes later. The women testified that, just
before they dropped off Appellants, Lawson suggested to Brown, “let’s hoodoo that
punk.”
According to Flannelly and Jones, the women then proceeded to Jenkins’s
house, where Jones rang the doorbell and no one answered, and they “revved” the
car’s engine to signal Appellants that the house was vacant.
The women testified that,
as they pulled out of Jenkins’s driveway, they met up with Flannelly’s uncle and decided
to travel to a local fast food restaurant. Flannelly and Jones testified that, upon their
return from the fast food trip, they heard firecrackers and saw smoke coming from the
Jenkins home.
Lois Lyon, Jenkins’s neighbor, testified that she saw an older model four-door
grey Oldsmobile sitting in Jenkins’s driveway for approximately fifteen minutes with
Flannelly behind the wheel and that she saw Flannelly’s uncle enter the vehicle. Lyon
testified that shortly thereafter she heard firecrackers explode, noticed smoke coming
from Jenkins’s house, and called 911 to report a fire.
Detective Riley testified that he located the vehicle Lyon described at Appellant
Brown’s mother’s home, and later discovered that car belonged to Barbara Flannelly.
Other witnesses testified that, after the date of the fire at the Jenkins home,
Appellants possessed an air rifle and a leather case containing a wrench. Jenkins
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testified that these items belonged to him and that he had seen them in his home the
morning of the fire.
An arson investigator testified to his opinion that the perpetrator intentionally
used a lighter or match to ignite what he referred to as combustible material
(newspapers, magazines, records, etc.) cluttering the floor of Jenkins’s living room.
TRIAL COURT’S LIMITATION OF LAWSON’S VOIR DIRE
Lawson asserts that the trial court committed reversible error by sustaining three
objections during his trial attorney’s voir dire and, therefore, limiting the scope of
questioning in such a way to prevent him from meaningfully exercising his peremptory
strikes.
The first such error occurred, according to Lawson, when the trial court
prevented him from questioning a member of the jury panel regarding his prior jury
service:
Defense:
Juror:
Defense:
Juror:
Defense:
Juror:
Defense:
Comm:
Judge:
Defense:
Juror:
Defense:
Juror:
Have any of you served as jurors before
today? Start right here, sir. Your number
please.
23. I, in Ohio, I served as a juror on a case.
What type of case was that, sir?
It was arson, actually.
It was arson. Is there anything about that
situation that will affect your judgment here
today?
No, it was a very different type of case.
What was the result of that case.
Objection, your honor.
Sustained as to the result.
Anything about that case that will affect your
decision?
Absolutely not.
How long ago was that?
Probably about six or seven years ago.
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Lawson exercised one of his peremptory challenges to remove Juror 23, but argues
that the trial court’s ruling preventing his counsel from inquiring regarding the verdict in
the prior case deprived him of information necessary to make a fully-informed decision
regarding whether to excuse the juror.
Lawson’s second alleged error concerns the trial court’s ruling on the
Commonwealth’s objection to a question his trial counsel asked the potential jurors
about their beliefs regarding leniency within the criminal justice system:
Defense:
Comm.:
Judge:
Anyone feel the courts are too lenient on a
defendant when they set a punishment?
Anyone feel that sentences should be longer
than they are?
I’m going to object to this, your Honor.
Sustained as to that question.
RCr 9.38 directs trial courts to afford parties a reasonable opportunity to conduct
voir dire examination, and, in Thomas v. Commonwealth,’ we recognized voir dire’s
instrumental role in garnering information from jurors to be later used in peremptory
challenge decisions.2
Of course, the ability to “effectively and intelligently” exercise
challenges does not justify unlimited voir dire on any topic upon which counsel might
‘KY., 864 S.W.2d 252, 259 (1993).
21d. at 259 :
The principal purpose of voir dire is to probe each
prospective juror’s state of mind and to . . . allow counsel to
assess suspected bias or prejudice. Thus, a voir dire
examination must be conducted in a manner that allows the
parties to effective/v and intelligently exercise their right to
peremptory challenges and challenges for cause
Id. (italicized emphasis in original; underlined emphasis added).
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wish to probe prospective jurors, and we have granted trial courts discretion to direct
the scope of voir dire.3 We do not believe the trial court abused this discretion.
Counsel’s questioning revealed that Juror 23 had sat on a jury in a factually
distinct arson case a number of years ago in a different jurisdiction which the juror did
not believe would have any influence on his decision in this case. Appellant correctly
4
notes that in McGinnis v. Commonwealth this Court affirmed the trial court’s finding
that the Commonwealth had given a racially-neutral explanation for challenging two
jurors who “had previously sat on a jury which returned a reckless homicide verdict
which [the prosecution] considered pro-defense under the particular circumstances.“5
We cannot agree, however, with Appellant’s hasty generalization that a trial court
abuses its discretion to control the scope of voir dire whenever it sustains an objection
to a question which could potentially provide a racially-neutral explanation for the use of
a peremptory challenge.
Because parties may, essentially, remove jurors by
peremptory challenge for any reason other than race or gender, the entitlement which
Appellant attempts to “spin” from the McGinnis holding would permit unfettered
questioning on any topic and strip the trial court of any discretion to control the scope of
voir dire.
Under the logic of Appellant’s argument, every litigant has a ria to ask
prospective jurors to choose a favorite between Elvis Presley and the Beatles because
‘See, a, Webb v. Commonwealth, Ky., 314 S.W.2d 543, 545 (1958) (“A wide
latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is
best governed by a wise and liberal discretion of the court. The exercise of the
discretion does not constitute reversible error unless clearly abused . . . .‘I Id.);
Tarrance v. Commonwealth, Ky., 265 S.W.2d 40, 48-49 (1954), cert. denied, 348 U.S.
899, 75 S.Ct. 220, 99 L.Ed. 706 (1954); McIntosh v. Commonwealth, Ky.App., 582
S.W.2d 54, 60 (1979).
4Ky., 875 S.W.2d 518, 523 (1994).
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a party could properly exercise peremptory challenges against Elvis-adverse jurors.
The fallacy in Lawson’s logic is demonstrated by its complete incompatibility with the
discretion we have granted trial courts to control the scope of voir dire. We believe that
the trial court acted within its discretion in sustaining the Commonwealth’s objection to
this question and further find that the trial court’s ruling did not prevent Lawson from
“effectively and intelligently” deciding whether to challenge Juror 23.
We likewise find no abuse of discretion in the trial court’s ruling preventing
Appellant from inquiring of the potential jurors’ feelings regarding the leniency of
criminal punishments. We recognize that we labeled “proper” a similar question which
was posed by the Commonwealth in lles v. Commonwealth.6 The fact that a given
question might be permissible does not, however, mandate the conclusion that
reversible error results whenever a trial court fails to permit it -this is the very nature
of discretion.
In Mu’Min v. Virainia,7 the United States Supreme Court clarified that the
critical inquiry is not whether the question could be helpful, but whether its denial
implicated fundamental fairness:
Questions . . . might be helpful in assessing whether a
juror is impartial. To be constitutionally compelled, however,
it is not enough that such questions might be helpful.
Rather, the trial court’s failure to ask these questions must
render the defendant’s trial fundamentally unfair.’
We find no such denial of fundamental fairness in the trial court’s ruling.
We allowed oral argument in this case primarily to address Lawson’s argument
that the trial court impermissibly limited his voir dire when it sustained the
6Ky., 455 S.W.2d 533, 534 (1970).
‘500 U.S. 415, 114 L.Ed.2d 493, 111 S.Ct. 1899 (1991).
‘1d. at 500 U.S. 425-6, 114 L.Ed.2d 506, 111 S.Ct. 1905.
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Commonwealth’s objection to questioning concerning the members’ ability to impose a
sentence within a range of penalties:
Defense’:
Comm.:
Defense:
Judge:
Judge:
Defense:
Judge:
Defense:
Comm.:
Judge:
Defense:
Judge:
Defense:
Judge:
The penalty range in this case is Objection, your honor.
May we approach?
Yes.
[Attorneys for the Commonwealth
and the defendants then
conferred at the bench]
In bifurcated trials, the first phase
is guilt or innocence. The
penalty’s not a relevant matter.
Judge, there’s a string of cases now about five
or six years old that say she’s allowed to give
the range and to ask if they can consider the
full range. If they can’t consider the full range,
they can’t sit as a juror. I don’t think that she is
allowed to ask anything past that.
Go ahead. Go ahead. You may ask.
The penalty range in this case is five years to
life. Is there anyone who cannot consider I’m going to object to that.
I object. Approach the bench counselors.
That is not what the range is in this case. The
PFO charge is totally separate. The line of
cases, I think, talks about only the initial
charges.
I don’t, yeah, she cannot mention about PFO,
but I mean That was But the entire punishment phase will be
considered I don’t think that the cases that Mr. Gibbs is
talking about says that. I think it talks about
only the initial charges. And I think the court
should have been advised that that was what
you were going to ask.
9At trial, Appellant Lawson was represented by two attorneys. One conducted
the voir dire and the other was the primary participant in the bench conferences on this
topic. Both of these attorneys are designated as “Defense” in the portion of the trial
record set out in this opinion, and the references by “Defense” to “she” refer to the trial
counsel who actually questioned the panel during voir dire.
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Defense:
Judge:
Comm.:
Judge:
Judge, I don’t have those cases directly in front
of me. It’s - I’m trying to remember the exact
language - It’s - but certainly you can’t ask
about lessers either, so I don’t know where that
leaves us.
Well, let’s see, I’m trying to figure out how
There’s no charge.
She should move on to the next question.
Ladies and gentlemen, if you would disregard
the last question by counsel who mentioned
that particular range of penalties in this case.
Lawson’s trial counsel then addressed a new line of questioning and did not return to
the topic of the penalty range. Defense counsel for Brown did not voir dire the panel on
this subject. Lawson contends on appeal that the trial court’s ruling prevented him from
questioning members of the panel to determine if they could consider the full range of
possible penalties. We conclude that Lawson’s failure to propose a question which
properly defined the appropriate penalty range presents no properly preserved error for
our review. We nevertheless feel this is an appropriate opportunity to revisit Shields v.
Commonwealth” and its progeny in order to establish parameters for proper penaltyrange voir dire in non-capital cases.
In Shields, we held that trial courts must allow voir dire questioning of
prospective jury members to assess their abilities to consider the range of permissible
penalties in the event the trial proceeded to a sentencing phase:
It is true that our current criminal trial procedure generally
precludes the jury from hearing purely ‘sentencing
information’ during the guilt or innocence phase of a trial,
[but] it does not absolutely preclude their being given some
information of that type incidental to a proper voir dire
examination. In order to be aualified to sit as a iuror in a
criminal case, a member of the venire must be able to
consider anv Permissible punishment. If he cannot, then he
“KY., 812 S.W.2d 152 (1991).
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properly may be challenged for cause. This type of
questionina. of course. must come before the auilt or
innocence phase since there is no seoarate voir dire
thereafter but before the punishment phase.”
At oral argument, the Commonwealth urged this Court to reconsider Shields and
hold that penalty-range voir dire is required only in capital cases. We remain convinced
that, in all criminal cases, the right to a fair and impartial jury requires the jury to
possess the ability to consider the full range of penalties, and we decline the
Commonwealth’s
invitation.
Although we find it easy to resolve the question of whether penalty-range voir
dire is necessary in non-capital cases, we have struggled for almost a decade with the
question of how this inquiry should be conducted. In Shields itself we recognized that
trial courts must be wary of the possibility of prejudice:
Of course, care must be exercised to assure that
information unduly prejudicial to either side is not introduced
into the voir dire examination unnecessarily or by subterfuge
for the real purpose of influencing the jury prematurely. For
example, it would be impermissible for the Commonwealth
at that stage to attempt to inform the jury of a defendant’s
prior criminal record or the fact that there would be a
persistent felony offender count to be tried if there were a
guilty verdict as to the underlying offense.‘*
The Shields majority suggested that penalty-range qualification questions should
integrate the possibility of PFO enhancement into the penalty range described to the
jury:
In the case at bar, the
was prevented by the in
the range of punishment
twenty years. The ruling
record shows that defense counsel
hmine ruling from telling the jury that
would be imprisonment for ten to
was correct, since, as indicated by
“ld. at 153 (emphasis added).
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the final sentence, this was not the correct permissible range
of punishment; it was twenty years to life, by reason of the
PFO count. If the trial court had permitted defense counsel
to discuss the range of punishment as requested, then, in
fairness, the prosecution should also have been permitted
during its questioning to explain that, under certain
circumstances in the case, the range of punishment could
be from twenty years’ to life imprisonment.13
In cases decided subsequent to Shields, we have attempted to further define the
scope of permissible voir dire regarding the penalty range. In Snodarass v.
Commonwealth,14 we held that the trial court properly prevented defense counsel from
informing the prospective jury members during voir dire that the Department of
Corrections would determine the defendant’s parole eligibility under the “violent
offender” statute. In McCarthv v. Commonwealth,‘5 we addressed the appellant’s
improperly preserved issue concerning whether the trial court erred in allowing voir dire
as to the penalty range for the underlying offense without PFO enhancement. The
McCarthy Court noted that the defendant received the minimum sentence and,
therefore, found no error in the trial court’s ruling.16 In Samples v. Commonwealth,” we
found that the trial court properly exercised its discretion when it allowed the
14Ky., 814 S.W.2d 579, 581 (1991) (“The trial court correctly ruled that matters
concerning parole eligibility should not be explored until the penalty phase of a
bifurcated trial, although he did permit the jury to be informed as to the range of
permissible punishment being from twenty (20) years to life imprisonment [on Class A
felonies.] This disclosure was sufficient to ensure that qualified jurors were selected to
afford both sides a fair and impartial trial.” Id.).
“KY., 867 S.W.2d 469, 471-472 (1994).
161d. at 472 (“In this case a 20 year sentence was imposed. As appellant
received the minimum sentence, the trial court’s alleged failure to allow voir dire on the
penalty range was not error.” Id.).
17Ky., 983 S.W.2d 151, 153-154 (1998).
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Commonwealth to factor the possibility of lesser included misdemeanor offenses into its
description of the permissible penalty range:
During voir dire, the prosecutor told prospective jurors that
appellant faced a penalty range of one day to life in prison.
Appellant objected because the minimum penalty for the
charges in the indictment was one year, not one day. The
trial court overruled the objection, concluding that with the
potential for instructions on lesser included offenses, the
prosecutor’s statement was not a misrepresentation of the
possible range of punishments.
’ ‘Shields is distinguishable from the case at bar because it
involved an attempt to ask prospective jurors about an
impermissible penalty range. Here, the prosecutor told the
jurors of a possible minimum penalty, and indeed the jury
was ultimately instructed on the misdemeanor offense of
second degree unlawful imprisonment. While the voir dire
question bordered on exaggeration and tended toward
trivialization, there was no direct misrepresentation of the
permissible range of punishment. There was no Shields
violation and the trial court’s denial of appellant’s motion was
proper.‘*
We recognize the difficulty trial courts and attorneys have experienced in
defining penalty ranges in such a way as to avoid prejudice to either party and still
gather meaningful information about whether jury members can consider the full range
of penalties. We observe that the confusion regarding how to pose penalty-range
questions during voir dire in non-capital cases remains despite a number of opinions by
this Court on the subject, and we suspect the uncertainty stems from the inherent
limitations of ad hoc appellate determinations. We have reviewed our previous
opinions on this topic and reexamined the value judgments made in those opinions and
now hope to finally resolve these questions.
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Essentially, the question before the Court is how the possible range of penalties
should be described to potential jurors during voir dire examination.
Conceptually, we
must decide how much information to give jurors before asking if they can consider the
full range of penalties.
initially, we observe that there are significant opportunity costs both to
overgeneralizing the inquiry and to overloading the jury with information. We have little
confidence that questioning will identify jurors who can actually consider the full range
of penalties if we give them no inkling of what those penalties might be and simply
inquire whether they will follow the trial court’s instructions during the penalty phase.lg
On the other hand, in order to maximize our confidence in the jurors’ ability to consider
the full range of penalties in the case, we could, in some manner, communicate the
possibility of convictions for lesser-included offenses, including misdemeanor offenses,
the possibility of PFO-enhancement, and explain the operation of concurrent and
consecutive sentencing. The risks associated with such an approach would include: (1)
overemphasis of a probabilistic sentencing phase; (2) de-emphasis of jurors’ abilities to
consider the penalty range by conveying the impression that the jury would enjoy
largely unfettered sentencing discretion2’
(3) implicit disclosure of the defendant’s prior
‘“a Morgan v. Illinois, 504 U.S. 719, 735-6, 119 L.Ed.2d 492, 506-7, 112 S.Ct.
2222 (1992) (“As to general questions of fairness and impartiality, such jurors could in
all truth and candor respond affirmatively, personally confident that such dogmatic
views are fair and impartial, while leaving the specific concern unprobed.” Id.);
Wainwright v. Witt, 469 U.S. 412, 424-5, 83 L.Ed.2d 841, 852, 105 S.Ct. 844 (1985)
(“[Mlany venire[persons] . . . may not know how they will react . . . or may be unable to
articulate . . . their true feelings.” Id.).
lo& Snodgrass v. Commonwealth, supra note 14 at 584 (Combs, J. dissenting)
(“Surely one year-to-life is not the penalty for each offense, or for any of them. This
misinformation misleads the jury into believing that its sentencing discretion will be
virtually unlimited, no matter the conviction. It further deprives counsel of optimal use of
(continued.. .)
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criminal record in any attempt to address the topic of PFO,enhancement;
and (4) a
substantial risk of misinformation inherent in any attempt to define penalty ranges for
lesser included offenses before the presentation of evidence.
There is no perfect way to define the penalty range. Any attempt to maximize
the ability to identify those jurors capable of considering the full range of penalties by
exposing them to additional sentencing information linearly increases the risk of
prejudice.
Accordingly, we must strike a balance which maximizes the fundamental
fairness of the proceeding by weighing the importance of selecting a fair and impartial
jury against the fairness concerns implicated by the “information overload” approach.
We feel that interests of fairness, uniformity, and certainty require that this balance be
struck by this Court. After much reflection, we believe voir dire should examine jurors’
ability to consider only the penalty ranges for the individual indicted offenses without
PFO enhancement. Affirmative answers to such questions allow substantial confidence
in jurors’ abilities to consider the full range of penalties without potentially misleading
them or otherwise prejudicing the defendant.
Accordingly, we hold that in all non-capital criminal cases where a party or the
trial court wishes to voir dire the jury panel regarding its ability to consider the full range
of penalties for each indicted offense, the questioner should define the penalty range in
terms of the possible minimum and maximum sentences for each class of offense i.e., a fine of not more than $250.00 for a violation, a term of imprisonment of not more
than ninety (90) days and/or a fine of not more than $250.00 for a Class I3
‘O(. ..continued)
peremptory strikes after identification of jurors uncomfortable with the true penalty
range for a particular offense. Once more, this defendant was disadvantaged.” Id.
(emphasis in original)).
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misdemeanor and not more than twelve (12) months and/or a fine of not more than
$500.00 for a Class A misdemeanor, or a term of imprisonment of one (1) to five (5)
years for a Class D felony, five (5) to ten (10) years for a Class C felony, ten (IO) to
twenty (20) years for a Class B felony, and twenty (20) years to life imprisonment for a
Class A felony or a capital offense for which the death penalty is not authorized. We
overrule Shields, McCarthv, and Samples to the extent they hold otherwise.
In the case now before the Court, we find no reversible error in the trial court’s
ruling. By conglom.erating the charges, Lawson’s trial counsel misstated the possible
range of penalties even under Shields.
Lawson’s trial counsel defined the possible
penalties in this case as ranging from “five years to life.” Although this definition
properly characterizes the maximum possible penalty either for the indicted offense of
second degree arson, if enhanced by PFO, or the maximum penalty to which
convictions on both offenses, if enhanced by PFO, could aggregate, it misled the jury
with respect to the minimum sentence. The jury could only sentence Lawson to five
years if it found him guilty of the second degree burglary charge (a Class C felony with
a penalty range of between five (5) and ten (10) years), but not guilty as to both the
second degree arson charge (a Class B felony with a penalty range of between (10)
and twenty (20) years) and the PFO indictment. Lawson’s trial counsel’s definition did
not properly state either the appropriate penalty range for any individual offense or the
possible “functional penalty range” to which convictions on the two indicted offenses
could aggregate.
We also believe Lawson mischaracterizes the trial court’s ruling with regard to
the permissible scope of voir dire on the panel’s ability to consider the full range of
penalties. The trial court, rather than prohibiting Lawson’s trial counsel from any further
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questioning on this subject, merely limited the voir dire to whether the jury could
consider the full range of penalties for the indicted offenses without enhancement by
PFO. Prior to counsel’s definition of the penalty range, the trial court appears to have
overruled the Commonwealth’s objection to voir dire regarding the penalty range. After
counsel misdefined the possible penalty range, the trial court instructed counsel to
move on to the next question, and admonished the jury to disregard the “last question
by counsel who mentioned that particular ranae of penalties in this case.” We find that
the trial court’s ruling correctly prevented Lawson’s trial counsel from misinforming the
jury regarding the available penalty range, but did not prohibit her from questioning the
panel regarding its ability to impose a penalty within the range available for the indicted
offenses. As Lawson made no further effort in the trial court to voir dire the panel on
the correct penalty range, his argument hinges on speculation that the trial court would
not have permitted him to ask questions he wished to ask, and he has not preserved
this error for our review.*’
PEREMPTORY CHALLENGES
Both Appellants argue, on the basis of RCr 9.40 and Sprinaer v.
Commonwealth,** that the trial court erred in assigning an insufficient number of
peremptory challenges for Appellants to exercise independently. Although neither
Appellant made any reference before the trial court to the number of peremptory
2’& McCarthy v. Commonwealth, supra note 15 at 471 (“Appellant contends
that he wanted to tell the jury that the correct permissible range was 20 years to life as
this appellant would be subject to the PFO statute. The appellant’s argument . . . was
not preserved for appellate review. He did move for voir dire on the penalty range of
burglary in the first degree and assault in the second degree, but no further.” Id.).
**KY., 998 S.W.2d 439 (1999).
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challenges authorized by RCr 9.40, both Brown and Lawson allege preservation
through Brown’s trial counsel’s request that the trial court grant his client “extra strikes.”
We find that neither Appellant properly preserved this issue for our review.
Neither Brown nor Lawson objected to the trial court’s determination of the number of
challenges authorized by RCr 9.40. We held in Kentuckv Farm Bureau Mut. Ins. Co. v.
Cook23 that a trial court’s improper allocation of peremptory strikes “requires reversal as
a matter of law if the issue is proper/y preserved by the adverse/y affected /ifigant.“24
Only a contemporaneous objection to the trial court’s improper allocation of peremptory
challenges will preserve such an error for our review, and Brown’s counsel’s request for
“bonus” challenges does not meet this standard. Although Brown contends that his
counsel’s vague request for additional peremptory challenges could have been a claim
to entitlement under RCr 9.40, we find no difficulty distinguishing between properly
preserved RCr 9.40 objections and requests for additional challenges as a matter of
grace.25
Brown’s trial counsel did not claim that the trial court denied Brown his “fair
23Ky., 590 S.W.2d 875, 877 (1979).
“1d. (emphasis added). See also Gabow v. Commonwealth, Ky., 34 S.W.3d 63,
75 (2000).
“The distinction is as clear as the one between a demand for one’s “fair share”
and a request for “some more.” See CHARLES DICKENS, OLIVER TWIST, 55-58 (Peter
Faircloth ed., Penguin Classics 1985) (1837-9):
The room in which the boys were fed was a large stone
hall, with a copper at one end, out of which the master,
dressed in an apron for the purpose, and assisted by one or
two women, ladled the gruel at meal-times; of which
composition each boy had one porringer, and no more except on festive occasions, and then he had two ounces
and a quarter of bread besides. . . . A council was held; lots
were cast who should walk up to the master after supper
that evening, and ask for more; and it fell to Oliver Twist.
(continued...)
-17-
share,” but rather requested an additional portion. Accordingly, we decline to review
Appellants’ allegation of error with respect to the allocation of peremptory challenges.
DIRECTED VERDICT MOTIONS
Both Appellants argue that the trial court erred in denying their motions for
directed verdict at the close of the Commonwealth’s case-in-chief because: (1) the
Commonwealth failed to prove an essential element of the crime of second degree
arson when the prosecution failed to introduce evidence on the “issue” of whether
Robert Jenkins consented to the damage to his home; and (2) because the
Commonwealth introduced no direct physical evidence showing that they entered the
Jenkins home and started a fire, the prosecution failed to sufficiently prove the
elements of second degree arson and second degree burglary. After a review of the
record, we find no merit to Appellants’ arguments.
KRS 513.030 defines the crime of arson in the second degree:
(1) A person is guilty of arson in the second degree when he
starts a fire or causes an explosion with intent to destroy or
damage a building:
(a) Of another; or
The evening arrived; the boys took their places. The
master, in his cook’s uniform, stationed himself at the
cooper; his pauper assistants ranged themselves behind
him; the gruel was served out; and a long grace was said
over the short commons. The gruel disappeared; the boys
whispered each other, and winked at Oliver, while his next
neighbors nudged him. Child as he was, he was desperate
with hunger, and reckless with misery. He rose from the
table, and advancing to the master, basin and spoon in
hand, said; somewhat alarmed at his own temerity:
‘Please, sir, I want some more.’
Id.
-1%
(b) Of his own or of another, to collect or
facilitate the collection of insurance proceeds
for such loss.
(2) In any prosecution under this section, it is a defense that:
(a) No person other than the defendant had a
possessor-y or proprietary interest in the
building, or, if other persons had such an
interest, all of them consented to the
defendant’s conduct; and
(b) The defendant’s sole intent was to destroy
or damage the building for a lawful purpose.26
The Commentary to this statute clarifies that KRS 513.030(2) outlines a defense to the
crime of second degree arson:
In this section, a defense unavailable for first degree arson
is provided for arson in the second degree when the
following elements coincide: the defendant was the sole
owner of the damaged building or was acting with consent of
the owners; and the defendant’s sole intent was to destroy
or damage the building for a lawful purpose. Labeling the
principle as a “defense” means that a defendant need only
raise the issue.27
KRS 500.050(l) explains the Commonwealth’s burden of proof with respect to
provisions designated as a “defense”:
(1) The Commonwealth has the burden of proving every
element of the case beyond a reasonable doubt, except as
provided in subsection (3). This provision, however, does
not require disproof of any element that is entitled a
“defense,” as that term is used in this code, unless the
evidence tending to support the defense is of such probative
force that in the absence of countervailing evidence the
defendant would be entitled to a directed verdict of
acquittal.**
26KRS 513.030.
27KRS
513.020, Official Commentary (Banks/Baldwin 1974).
**KRS 500.070(l). See also KRS 500.070, Official Commentary (Banks/Baldwin
1974):
(continued...)
-19-
In a second degree arson case, therefore, the trial court need not instruct the jury
regarding owner consent unless the evidence presented raises an issue relating to the
defense. Appellants did not testify at trial, and trial counsel’s cross examination
strategy and closing argument exclusively presented a “didn’t do it” defense. Our
review of the record convinces us that no witness testified regarding either element of
the defense. Notwithstanding this, elements (D) and (E) of the trial court’s second
degree arson instruction contained the KRS 513.030(2) defense:
You will find the Defendant guilty of Second-Degree Arson
under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
A. That in this county on or about the 15th day of June,
1998, and before the finding of the Indictment herein, he,
acting alone or in concert with others, damaged or destroyed
a dwelling by setting fire to an unoccupied dwelling house
owned by Robert L. Jenkins;
B. That he started the fire intentionally;
C. That in so doing, it was his intention to damage or
destroy the occupied dwelling house;
AND
D. Robert L. Jenkins did not consent to the damage or
destruction of the unoccupied dwelling house;
AND
E. That in so doing, it was not the Defendant’s sole intent
to damage or destroy the dwelling for a lawful purpose.
28( . ..continued)
This provision is a special definition section to apply
generally throughout the Code. It assumes that in defining
the specific offenses, and some of the general provisions,
there will be a need for two different types of “defenses.”
The first, which will be designated simply as “defense,” will
serve to impose upon a defendant only the responsibility of
raising a certain issue. Once such an issue is raised the
state must establish its negative beyond a reasonable doubt.
This concept is used to eliminate the necessity of the state
disproving elements that are not really involved in the case.
-2o-
Although we find that the trial court erroneously incorporated the defense into the
jury instructions, we see no reversible error with respect to Appellants. The additional
elements could in no way prejudice Brown and Lawson, as the instructions required the
jury to find that the Commonwealth proved each element of the offense beyond a
reasonable doubt. We believe the victim’s outrage over Appellants’ actions allowed the
jury to reasonably infer that Jenkins had not given Brown and Lawson permission to
damage his home.
Additionally, we hold that the trial court properly denied Appellants’ motions for
directed verdicts which alleged insufficiency of the evidence because “[o]n 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 is the defendant entitled to a
directed verdict of acquittal.“2g
The Commonwealth built a substantial, if circumstantial,
case against Brown and Lawson on the basis of their incriminating statements, motives,
presence in the area of the home at the time the fire began, and subsequent
possession of items taken from inside the home. We have held that trial courts, in
ruling upon a motion for a directed verdict, consider not only the actual evidence, but
also “must draw all fair and reasonable inferences from the evidence in favor of the
Commonwealth.“30
Although Appellants bemoan the circumstantial nature of the
evidence against them, “circumstantial evidence is sufficient to support a criminal
conviction as long as the evidence taken as a whole shows that it was not clearly
29CommonweaIth
added).
v. Benham, Ky., 816 S.W.2d 186, 187 (1991) (emphasis
301d. (emphasis added).
-21-
unreasonable for the jury to find guilt.“31
In Hendley v. Commonwealth,32 we found
similar evidence sufficient to support an arson conviction:
In the case at bar there is the testimony of two witnesses
who place the appellant at or in very close proximity to the
apartment shortly prior to the fire. . . . Counsel for appellant
vigorously argues that the only evidence connecting the
appellant with the commission of the crimes . . . is
circumstantial. It can hardly be contended by the appellant
that he can be found to be the guilty culprit only if he is
actually seen igniting the fire. Arsonists don’t work that way.
[ ] Circumstantial evidence may be considered by the court
when weighing the quality of evidence to establish the body
of the crime.
. . . We are of the opinion, even excluding the appellant’s
testimony and his confession, that from the remaining
evidence as a whole it would not be clearly unreasonable for
a jury to find the appellant guilty.33
We believe the jury could reasonably infer Appellants’ guilt on the basis of the evidence
presented by the Commonwealth, and we find that the trial court properly denied
Appellants’ motions for directed verdict.
ARSON THIRD DEGREE AS A LESSER INCLUDED OFFENSE
Both Appellants argue the trial court committed palpable error when it failed to
incorporate, sua sponte, an instruction on the lesser included offense of third degree
arson within the jury instructions. Appellants concede they made no request for such
an instruction to the trial court below, but assert that “manifest injustice” resulted from
its omission because the evidence presented would have allowed the jury to conclude
3’Bussell
v. Commonwealth, Ky., 882 S.W.2d 111, 114 (1994).
32Ky., 573 S.W.2d 662 (1978).
331d. at 665.
-22-
that they intentionally started a fire inside the Jenkins home, but that they did not intend
to damage or destroy the building.34
We find that the trial court properly decided not to instruct the jury regarding the
lesser included offense of third degree arson. When a defendant denies any
involvement in the crime alleged, and the evidence presented does not otherwise
suggest reasonable doubt regarding the degree of an offense, trial courts need not
instruct regarding lesser included offenses.35
Although Appellants suggest a jury could
have believed they intentionally started a fire inside Jenkins’s home in an attempt to
destroy some of the victim’s personal possessions, but speculate that they started the
fire without an intent to damage the house itself, we do not find evidentiary support in
the record for such conjecture. This Court has recognized that “[ilntent may be inferred
from actions because a person is presumed to intend the logical and probable
consequences of his conduct and a person’s state of mind may be inferred from actions
preceding and following the charged offense.“36 The evidence in this case supports only
the inference that the appellants intended to carry out Lawson’s invitation to “hoodoo
that punk” and “get him while he ain’t home” by damaging or destroying his house.
Accordingly, we hold that the trial court properly instructed the jury regarding only the
indicted offense of second degree arson.
“See KRS 513.040 (“A person is guilty of arson in the third degree if he wantonly
causes destruction or damage to a building of his own or of another by intentionally
starting a fire or causing an explosion.” Id.).
3s& Parker v. Commonwealth, Ky., 952 S.W.2d 209, 211-212 (1997).
361d. at 212 (citing Davidson v. Commonwealth, Ky., 340 S.W.2d 243 (1960);
Wilson v. Commonwealth, Ky., 601 S.W.2d 280 (1980); Claypoole v. Commonwealth,
Ky., 337 S.W.2d 30 (1960)).
-23-
PRIOR BAD ACTS EVIDENCE
Both Appellants argue they suffered prejudice as a result of trial testimony
ranging from Brown’s former girlfriend’s testimony that Brown was “crazy” and “insane”
and abused both cocaine and prescription pills to a juror’s statement during voir dire
that he knew Lawson because of the juror’s employment at the detention center.
Appellants concede that they made no objections in the trial court to any of the
testimony they identify as prejudicial on appeal, and, after a thorough review of the
claims, we do not find a substantial possibility that the exclusion of this testimony would
have resulted in a different verdict.37
STATUTORY MODIFICATIONS TO MAXIMUM SENTENCE
The crimes with which the jury convicted Appellants occurred on June 15, 1998.
On July 15,1998, a number of changes to the Kentucky Penal Code became effective,
including changes to the sentencing ranges in felony cases. Lawson asserts that two of
these changes are relevant to the judgment imposed by the Laurel Circuit Court: (1)
although life imprisonment remains a possible sentence for any Class A felony or a
Class B felony enhanced by first degree PFO status, the maximum indeterminate term
of imprisonment to which a trial court may sentence a defendant for such an offense is
fifty years;38 and (2) trial courts may not aggregate multiple sentences of imprisonment
37See Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996); Byrd v.
Commonwealth, Ky., 825 S.W.2d 272, 276 (1992); Jackson v. Commonwealth,
Ky.App., 717 S.W.2d 511 (1986).
38a KRS 532.060(2) (“The authorized maximum terms of imprisonment for
felonies are: (a) For a Class A felony, not less than twenty (20) years nor more than fifty
(50) years, or life imprisonment.” Id.); KRS 532.080(6) (“A person who is found to be a
persistent felony offender in the first degree shall be sentenced to imprisonment as
follows: (a) If the offense for which he presently stands convicted is a Class A or Class
(continued.. .)
-24-
for indeterminate terms for longer than a total of seventy (70) years.3g The trial court
instructed the jury and entered final judgment under the old statutory provisions which
provided no limit on the term of years a defendant might receive in connection with a
Class B felony enhanced by first degree PFO and made life imprisonment the only limit
to which trial courts could aggregate multiple indeterminate prison sentences for
offenses of this degree. Lawson received a term of sixty (60) years for his PFOenhanced second degree arson conviction and a total sentence of eighty (80) years
Lawson alleges that the trial court lacked the jurisdiction to enter judgment sentencing
him outside the statutory limits in place at the time of trial.
We recently addressed a similar issue in Commonwealth v. Phon,40 and held that
KRS 446.110 governs the retrospective application of legislative amendments to
punishment provisions of the Kentucky Penal Code.41 KRS 446.1 IO reads:
No new law shall be construed to repeal a former law as to
any offense committed against a former law, nor as to any
act done, or penalty, forfeiture or punishment incurred, or
any right accrued or claim arising under the former law, or in
any way whatever to affect such offense or act so committed
or done, or any penalty, forfeiture or punishment so incurred,
or any right accrued or claim arising before the new law
takes effect, except that the proceedings thereafter shall
B felony, a persistent felony offender in the first degree shall be sentenced to an
indeterminate term of imprisonment, the maximum of which shall not be less than
twenty (20) years nor more than fifty (50) years, or life imprisonment.” Id.).
39& KRS 532.1 IO(l)(a) (“In no event shall the aggregate of consecutive
indeterminate terms exceed seventy years.” id.).
40Ky., 17 S.W.3d 106 (2000).
4’ld. At 108 (“KRS 446.110 deals specifically with the procedure to be followed
when a law is amended. . . . This interpretation . . . prevents KRS 446.110 from being
meaningless where there is no express declaration of retroactivity in a new statute
containing mitigating penalties.” Id.).
-25-
conform, so far as practicable, to the laws in force at the
time of such proceedings. If any penalty. forfeiture or
punishment is mitiaated bv anv provision of the new law,
such provision may. by the consent of the party affected, be
applied to any iudament pronounced after the new law takes
effect
-.42
At common law, when the legislature modified or repealed a statute, the courts
no longer had the authority to enter any judgment relying upon the prior law.43 KRS
446.110 modifies this common law rule so that, unless the General Assembly
specifically designates otherwise, “offenses committed against the statute before its
repeal, may thereafter be prosecuted, and the penalties incurred may be enforced.“44
Unquestionably, therefore, the trial court had jurisdiction to sentence Lawson under the
pre-amendment provisions of KRS Chapter 532.
This Court and its predecessor have consistently interpreted KRS 446.1 IO to
require co,urts to sentence a defendant in accordance with the law which existed at the
time of the commission of the offense unless the defendant specifically consents to the
application of a new law which is “certainly” or “definitely” mitigating.45
As Lawson did
42KRS 446.110 (emphasis added).
43See, e.g., Commonwealth v. Louisville & N. R. Co., 186 Ky. 1, 215 S.W. 938,
939 (1919).
441d. at 940. See also Dial v. Commonwealth, 142 Ky. 32, 133 S.W. 976, 977
(1911) (“But it is insisted by appellant that, as the statute which allowed the jury to fix
the penalty is now repealed, therefore there is not any tribunal to apply it, and he must
go free. Not so. [KRS 446.1 IO] expressly saves the case and preserves the old statute
as to its penalty for offenses committed under it.” Id.).
45See. e.a., Commonwealth v. Phon, supra note 40 at 108 (“[Ulpon the
unqualified consent of the defendant, a sentence of life without parole may be lawfully
imposed for capital crimes committed before July 15, 1998.” id.); Kinser v.
Commonwealth, 181 Ky. 727, 205 S.W. 951 (1918) (“Tlhe present law could not be
applied without the consent of appellant.” Id.); Coleman v. Commonwealth, 160 Ky. 87,
169 S.W. 595, 597 (1914) (“Confusion and uncertainty will be avoided when the
(continued.. .)
-26-
not raise any issue in the trial court concerning the new provisions of KRS Chapter 532,
he certainly did not consent to the application of the modified provisions. Without
reaching the issue of whether those statutory modifications definitely mitigate the
existing penalty ranges, we hold that, under the law at the time of the commission of
these offenses, the trial court did not err either in the manner in which it instructed the
jury regarding the penalty range or in its final judgment imposing sentence.
For the above reasons, we affirm the judgment of the Laurel Circuit Court in
each of these cases.
All concur.
COUNSEL FOR APPELLANT, LESLIE LEE LAWSON:
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane #302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLANT, HAROLD SANFORD BROWN:
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane #302
Frankfort, Kentucky 40601
punishment in force when the offense is committed is followed, as it should be, unless
the punishment is definitely mitigated by the new law and the accused consents, as
provided in [KRS 446.1 IO], that judgment may be pronounced under the ,new law.” Id.);
Collier v. Commonwealth, 160 Ky. 338, 169 S.W. 740, 741-742 (1914) (“Where an act
mitigating an offense goes into effect after the offense is committed, and before the
trial, if the parties consent the trial court may give the defendant the benefit of the new
act[.]” Id.); Stewart v. Commonwealth, 141 Ky. 522, 133 S.W. 202, 203 (1911);
Cockerell v. Commonwealth, 115 Ky. 296, 73 SW. 760, 762 (1903).
-27-
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
Capitol Building
Frankfort, Kentucky 40601
Brian T. Judy
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
-2%
1999-SC-0458-MR
LESLIE LEE LAWSON
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
98-CR-137-l
V.
COMMONWEALTH OF KENTUCKY
6RDER’DENYING
APPELLEE
PETITION FOR REHEARING
Appellant Leslie Lee Lawson’s petition for rehearing of this Court’s opinion
rendered on May 24,200l is hereby denied.
All concur.
ENTERED: September 27,200l.
1999-SC-0458-MR
LESLIE LEE LAWSON
V.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HON. LEWIS 6. HOPPER, JUDGE
INDICTMENT NO. 98-CR-0137-001
COMMONWEALTH OF KENTUCKY
AND
1999-SC-0491
APPELLEE
-MR
HAROLD SANFORD BROWN
V.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HON. LEWIS B. HOPPER, JUDGE
INDICTMENT NO. 98-CR-0137-002
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER AMENDING OPINION
On the Court’s own motion, the opinion in the above-styied appeal,
rendered May 24, 2001, is hereby amended by the substitution of a new page 7,
attached hereto, in lieu of page 7 as originally rendered. Said modification does not
affect the holding of the opinion.
ENTERED: October /a, 2001.
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