STERLING J. RANEY V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 25, 2007
NOT TO BE PUBLISHED
'SixpremE Courf of
2006-SC-000030-MR
STERLING J. RANEY
V.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
INDICTMENT NO. 05-CR-00136
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On December 19, 2005, the Appellant, Sterling J . Raney, was convicted
by the Bell Circuit Court of wanton murder. The jury recommended a sentence of
thirty-five (35) years, and the trial court sentenced the Appellant accordingly . He
now appeals his conviction to this Court pursuant to Ky . Const. ยง110(2)(b) asking
this Court to reverse his conviction and afford him a new trial. After review of the
record, we affirm his conviction.
FACTS
On May 29, 2005, the Appellant, Sterling Raney, was at his residence
with Dana Hatfield when his son, Danny, and his friend, Mark Petrovich, arrived.
The men were drunk and continued to drink and do cocaine . Carmella Torez
arrived at the Appellant's residence a short time later, and at that time, the
Appellant asked Danny and Mark to leave . He continued to do so two or three
times. Mark left but Danny stayed . The Appellant then went to his bedroom and
got his shotgun. Based upon the testimony, he came back into the front room,
raised the gun towards Danny, and as Danny put his arms up to block the gun,
the Appellant fired .
Carmella stated that prior to the shooting, the victim had asked her if she
wanted to do some cocaine and also claimed to have some morphine pills .
However, no cocaine or morphine pills were found at the residence .
The Appellant stated that he had not seen his son for about 10 years . He
stated that he had not actually raised his son, that they had a bad relationship
and he was afraid of Danny. He also stated that they had two or three bad
situations in the past and that Danny had robbed him before . He stated that on
the night in question, Danny came to his house and asked for a plate for his
cocaine . Mark and Danny did cocaine and did not like it when the Appellant
starting criticizing their cocaine use. Danny started making sexual comments
which caused Appellant to tell Danny to leave the residence . After Carmella
came in, Danny asked if she wanted to do some cocaine . She said no and the
Appellant again asked the men to leave . The Appellant stated that he counted to
ten, and then counted to five two more times, causing Mark to leave, but Danny
stayed in the house . He then went to get his gun and raised it at him to scare
him, when it accidentally went off. He had not checked to see if the gun was
loaded . He stated to police that he was "not going to lose any sleep over it."
John Hunsaker, a medical examiner, testified on behalf of the
Commonwealth that he performed the examination on Danny and concluded that
the cause of death was a shotgun wound to the chest which was fired from a
distance of ten feet or less. He testified that Danny's blood alcohol content was
.179 and was positive for cocaine.
At the conclusion of the case, the jury was instructed on a full range of
homicide offenses . After the jury was sent to deliberate, additional avowal
testimony was taken from the Appellant concerning his relationship with the
victim.
The Bell Circuit Court returned with a verdict finding the Appellant guilty of
wanton murder . After the penalty phase was conducted, the jury recommended
a sentence of thirty-five years incarceration . On December 19, 2005, the
Appellant was sentenced accordingly. His appeal follows .
ARGUMENT
I . Jury was properly instructed
The Appellant first argues that palpable error occurred when the trial judge
did not instruct the jury on protection of property . This error is unpreserved . If an
Appellant "fail[s] to timely preserve his arguments for review as required by RCr
9 .54," "prior to the time the Court instructs the jury," preservation is lacking and
this Court will "decline to address his arguments any further [if] none of them
warrant review pursuant to RCr 10.26." Pollini v. Commownealth 172 S.W.3d
418,428 (Ky. 2005); Commonwealth v. Collins, 821 S.W.2d 488 (Ky.1991) . RCr
10.26 allows review of an unpreserved error if the error affects the substantial
rights of the Appellant. It affects the substantial rights of the Appellant if it
"seriously affects the fairness, integrity or public reputation of judicial
proceedings ." Commonwealth v. Rodefer, 189 S .W.3d 550 (Ky. 2006) (citations
omitted) .
KRS 503.080 states in pertinent part:
1) The use of physical force by a defendant upon another person is
justifiable when the defendant believes that such force Is
immediately necessary to prevent
(a) the commission of criminal trespass or burglary in a dwelling,
building, or upon real property in his possession . . . [and]
(2) The use of deadly physical force by a defendant upon another
person is justifiable under subsection (1) only when the defendant
believes that the person against whom such force is used is: . . .
(b) committing or attempting to commit a burglary of such dwelling .
Evidence that the Appellant admitted giving permission to Danny to enter
his residence, although later revoked, and that Danny was unarmed goes against
such an instruction .
Furthermore, there was no indication that Danny used or
was going to use assaultive behavior. The Appellant admitted that Danny had
not hit or threatened him prior to the shooting . Testimony confirms that he was
raising his hands in a blocking manner when the Appellant raised the shotgun in
his direction. Moreover, the Appellant's explanation of the shooting was that it
was accidental and KRS 503 .080 concerns an intentional activity used to prevent
the commission or attempted commission of burglary of his dwelling . Thus, the
failure of the trial court to instruct the jury on protection of property did not affect
the substantial rights of the Appellant, and therefore, there was no palpable error.
II . Prior violent acts were properly excluded
The Appellant next argues that the trial court erred when it did not allow
evidence of Danny's prior acts of violence of which the Appellant was aware.
Because the Appellant had introduced considerable testimony which indicated
Danny's drug and alcohol use, and pointed out his fear of Danny, this argument
is without merit .
Prior to the Appellant's testimony, a bench conference was held at which
time the Commonwealth requested that the court advise the Appellant not to
testify about specific acts of Danny's misconduct . The Appellant's counsel
wanted to bring out that Danny had robbed the Appellant in the past and had
broken his nose. The trial judge admonished the Appellant to not comment on
the fact that the victim had been convicted of a felony and further instructed the
Appellant not to talk about the specific acts of conduct because these incidents
were too remote in time and there had been no contact between them in years .
During the Appellant's testimony, he testified about the bad relationship
between him and Danny and stated that he was afraid of Danny. He indicated to
the jury that Danny had robbed him before, at which time he was admonished by
the trial judge . At the end of his testimony, his counsel again asked the trial
judge permission to present more testimony to show that Danny had been mean
to the Appellant . The Commonwealth replied that those actions were too remote
in time. The court ruled that character was not an issue, but gave the Appellant
the opportunity to present the testimony by avowal .
The avowal testimony indicated that he was afraid of Danny because of
the experiences he had with him when they had been drinking together several
years ago. He also stated that Danny was involved in the death of a girl several
years ago and that he had not seen Danny for at least 13 years because Danny
had been in prison . However, the jury already knew that Danny had been in
prison because Mark testified that is where he and Danny had met.
It is widely recognized that the determination as to the relevance and
admissibility of evidence are left to the discretion of the trial court. Simpson v.
Commownealth , 889 S.W.2d 781, 783 (Ky. 1994) . A trial judge's decision with
respect to relevancy of evidence is reviewed under an abuse of discretion
standard . Love v. Commonwealth 55 S.W.3d 816 (Ky. 2001). "The test for
abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles." Woodard v.
Commownealth , 147 S.W.3d 63 (Ky. 2004) .
Here, the Appellant was able to testify that he was afraid of Danny and
that Danny had robbed him before. The jury also knew that Danny had
previously been in prison . Furthermore, the testimony does not fall into the
exceptions found in Saylor v. Commonwealth , 144 S.W .3d 812 (Ky. 2004) . In
Saylor, the court held that a defendant may introduce evidence of the victim's
character for violence in support of a claim that he acted in self-defense or that
the victim was the initial aggressor. However, such evidence may only be in the
form of reputation or opinion, and not specific acts of misconduct, under KRE
405(a), unless the specific acts evidence is offered where a victim's prior acts of
violence are offered to prove that the defendant so feared the victim that he
believed it was necessary to use physical force in self-protection . Saylor, supra. .
See also Parrish v. Commonwealth, 581 S .W.2d 560 (Ky. 1979); Amos v.
Commonwealth , 516 S.W .2d 836 (Ky. 1974), and McGill v. Commownealth , 365
S.W .2d 470 (Ky. 1963). Since the Appellant did not argue self-defense, rather
that it was an accident, this argument is without merit.
The Appellant was able to mention several times the acts upon which he
based his fear of Danny. The Appellant was able to testify about Danny robbing
him, that he feared Danny, and that they had a bad relationship . Not allowing the
specific acts that were otherwise remote in time and irrelevant to this crime, was
not arbitrary or unreasonable . Therefore, this argument is without merit.
CONCLUSION
Therefore, the conviction of the Appellant is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Damon L. Preston
Appeals Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Ky. 40601-1109
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
Room 118 Capitol Building
Frankfort, Ky. 40601
George G. Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive, Suite 200
Frankfort, Ky. 40601-8204
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