STEVEN PAULLEY V. COMMONWEALTH OF KENTUCKY
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RENDERED : OCTOBER 21, 2010
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2009-SC-000024-MR
[OAT E V/
STEVEN PAULLEY
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C . McKAY CHAUVIN, JUDGE
NOS. 07-CR-002924-001 AND 08-CR-001051-003
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
2009-SC-000033-MR
HENRY L. GUNN (A/ K/A HENRY L. GUNN)
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. McKAY CHAUVIN, JUDGE
NOS . 07-CR-002651 AND 08-CR-001051-001
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
VACATING AND REMANDING
I . INTRODUCTION .
Rocky Brown was shot and killed while attempting to hold the door to
prevent a forced entry into Adolphus Stone's home . A circuit court jury
convicted Henny Gunn (a/k/a Henry Gunn) and Steven Paulley of, among
other offenses, murdering Brown. Both Gunn and Paulley separately appealed
to this Court
1
as a matter of right.'
Ky. Const. § 110(2)(b) .
Because the operative facts and many of the
issues are the same for both appeals, we have elected to resolve both appeals in
this combined opinion . Because the trial court improperly failed to grant a
request to strike a juror for cause, we must vacate Paulley's and Gunn's
convictions and remand these cases to the trial court for further proceedings
consistent with this opinion .
II. FACTUAL AND PROCEDURAL HISTORY.
Nine people, including three children, were present at the home Stone
shared with his girlfriend . Someone knocked on the door and identified himself
as B. J. The knocking became pounding and kicking, and Brown put his
weight against the door to hold it closed. A shot fired through the door struck
and fatally wounded Brown, who had leaned his back and shoulder against the
door. When the police arrived, they could not get in through the front door
because Brown was still holding the doorknob .
In the course of their investigation, the police learned of Stone's ongoing
feud with Eric Ward . Eventually, Ward, Paulley, Gunn, and Eric Taylor were
charged in relation to Brown's death . Two weeks before trial, Ward and Taylor
agreed to testify for the Commonwealth . Ward pleaded guilty to complicitybased charges surrounding Brown's death and agreed with the Commonwealth
on a sentence of four years' imprisonment for those charges . Taylor entered
into an agreement with the Commonwealth in which he waived his
5th Amendment right to refuse to testify in exchange for a reduction in the
severity of his charges. Nonetheless, Taylor was permitted to sit at the defense
table during Gunn and Paulley's joint trial. The jury acquitted Taylor of all
charges; Gunn and Paulley were convicted of all charges . Ultimately, in
accordance with the jury's verdicts and recommendations, the trial court
sentenced Gunn to life imprisonment and sentenced Paulley to twenty years'
imprisonment.2
III. ANALYSIS.
Both Gunn and Paulley raise numerous, often-overlapping issues. We
will discuss the failure to strike a juror for cause issue first because it is
dispositive . We will then briefly discuss only those issues that are potentially
dispositive or are necessary for guidance upon remand .3
A. Failure to Strike Juror for Cause .
During voir dire, prospective juror #220248 stated that she was a civilian
who previously had served as a training instructor for the Indianapolis Police
Department . She also stated that she had many relatives in law enforcement,
none of whom lived in Kentucky . She disclaimed any bias because she did not
know any of the officers involved in these cases.
2
3
After the jury recommended a twenty-year sentence for Paulley on the murder
conviction, Paulley and the Commonwealth agreed to sentences on the other
convictions, all of which were to be served concurrently with the murder
conviction, for a total sentence of twenty years' imprisonment . Similarly, after the
jury recommended a sentence of life imprisonment for Gunn on the murder
conviction, Gunn and the Commonwealth agreed to sentences on the remaining
convictions, all of which were to be served concurrently with the life imprisonment
sentence, for a total sentence of life imprisonment.
We have carefully considered the briefs and are aware of the plethora of issues
contained in them. Any issue not specifically discussed in this opinion is deemed
to be moot, without merit, or unlikely to recur on remand.
Later on in voir dire, prospective juror #220248 stated that she had been
a burglary victim several times, both as a child and as an adult . Nonetheless,
she insisted that she could be fair and impartial in these burglary and murder
cases .
Finally in voir dire, prospective juror #220248 stated that her son had
been the victim of a robbery involving a firearm . When asked, the prospective
juror admitted that she was not sure she could listen to the evidence and not
allow her previous experience to cloud her ability to consider these cases .
Defense counsel asked if the prospective juror's prior experience would
interfere with her ability to be fair and impartial, to which the woman
responded that she was not sure.
Over the Commonwealth's objection, defense counsel later moved to
strike prospective juror #220248 for cause. The trial court said it would have
liked to question this prospective juror further but denied the motion to strike
for cause because the court believed the juror had not expressed anything that
could prevent her from serving as a juror. Defense counsel then was forced to
use a peremptory strike to remove prospective juror #220248.
Kentucky Rules of Criminal Procedure (RCr) 9 .36(l) provides a juror
should be struck for cause "[w]hen there is reasonable ground to believe
that . . . juror cannot render a fair and impartial verdict on the evidence . . . ."
A trial court generally is given "broad discretion to determine whether a
prospective juror should be excused for cause . . .
."4
Nonetheless, "that
discretion does not mean a trial judge's decision not to strike a juror for cause
is beyond review by an appellate court."5 Ordinarily, an erroneous, discretionabusing failure to grant a motion to strike for cause results in reversible error.6
But we have recently made clear our requirement that "in order to complain on
appeal that he was denied a peremptory challenge by a trial judge's erroneous
failure to grant a for-cause strike, the defendant must identify on his strike
sheet any additional jurors he would have struck ."7
Gunn and Paulley admit neither identified any additional jurors he would
have struck if he had not been forced to use a peremptory strike on juror
#220248 . The Commonwealth argues that such a failure is fatal to Gunn's and
Paulley's claims . We disagree.
Gunn and Paulley's joint trial occurred in September 2008. We did not
make definite our requirement that defendants set forth the names of other
jurors they would have struck until October 2009 - over a year after Gunn
and Paulley's trials .$ It would be unfair for us to hold Gunn and Paulley to a
standard that did not exist at the time of their trials . Gunn and Paulley timely
s
Mabe v. Commonwealth, 884 S.W .2d 668, 670 (Ky. 1994) .
Gabbard v. Commonwealth, 297 S.W.3d 844, 853 (Ky. 2009) .
Id. at 854 ("The question then is whether the trial court's erroneous failure to grant
the for-cause strike is a reversible error. This Court has ruled that ordinarily, such
an error affects a substantial right of a defendant and is presumed to be
prejudicial .") .
Gabbard was rendered on October 29, 2009. See id. at 844 .
made their objection for cause to prospective juror #220248 . 9 Under the state
of the law at the time, nothing more was required . So we shall deem this issue
to be properly preserved . For all cases tried after finality of our decision in
Gabbard, however, we reaffirm that "in order to complain on appeal that he
was denied a peremptory challenge by a trial judge's erroneous failure to grant
a for-cause strike, the defendant must identify .on his strike sheet any
additional jurors he would have struck ."io
Having dealt with the procedural aspects of this issue, we may now
analyze it on the merits . A properly qualified juror must be impartial, which
former United States Supreme Court Chief Justice Charles Evans Hughes
described as comprising a "mental attitude of appropriate indifference . . . ." l i
In order to determine if a juror has the appropriate degree of impartiality, "[t]he
The Commonwealth contends this issue is preserved only as to Paulley . The
Commonwealth cites to three portions of the video record where Gunn's counsel
purportedly stated he had no strikes for cause. But one of those three citations
merely contains a fleeting recitation that the defense, which was allowed to
collaborate on peremptory challenges, used a peremptory challenge on
juror #220248 . The other two citations do relate to the motion to strike that juror
for cause . But the objection for cause was made at an en masse bench conference
during which the attorneys did not face the camera and during which there is an
ongoing loud and unrelated background conversation, so it is sometimes difficult to
discern with certainty what is being said and by whom. So we deem this issue
preserved .
io Gabbard, 297 S .W.3d at 854 . Both the Commonwealth and the defendants agree,
for whatever reasons, the jury strike sheets are not in the record before us. So we
could not, in this case, strictly apply our holding in Gabbard regarding
denominating which other juror(s) a defendant would have exercised a peremptory
challenge upon, even if we desired to do so.
United States v. Wood, 299 U.S . 123, 145-46 (1936) ("Impartiality is not a technical
conception . It is a state of mind. For the ascertainment of this mental attitude of
appropriate indifference, the Constitution lays down no particular tests and
procedure is not chained to any ancient and artificial formula.") .
9
test is whether, after having heard all of the evidence, the prospective juror can
conform his views to the requirements of the law and render a fair and
impartial verdict." 12 Any doubts about the ability of a juror to be fair and
impartial should be construed in favor of a defendant . 13
The fact that prospective juror #220248 had personal and familial ties to
law enforcement does not automatically disqualify her from sitting as a juror
on the case. 14 Similarly, the fact that prospective juror #220248 had been the
victim of a similar crime did not automatically disqualify her from jury
service . 15 So had those been the only allegedly disqualifying remarks made by
prospective juror #220248, we would have routinely affirmed the trial court's
decision to refuse to strike her for cause .
But far more troubling is the fact that prospective juror #220248 was
unable to disclaim any bias stemming from being the mother of a crime victim.
In fact, she stated she might not be able to put out of her mind the fact that
12
13
14
15
Mabe, 884 S.W.2d at 671 .
Fugate v. Commonwealth, 993 S.W .2d 931, 939 (Ky. 1999) ("Composition of the
jury is always vital to the defendant in a criminal prosecution and doubt about
unfairness is to be resolved in his favor .") ; Calvert v. Commonwealth, 708 S.W.2d
121, 123 (Ky.App. 1986) ("While we recognize the difficulty in empaneling a totally
unbiased jury, especially in a case such as this, in a criminal case, the trial court
should resolve all doubts as to the competency of the juror in favor of the
defendant.") .
See Stopher v. Commonwealth, 57 S .W.3d 787, 797 (Ky. 2001) (finding no error in
failure to strike for cause juror whose father was police officer when juror "noted
that he did not have any preference for police officers and that his family
connection to the law enforcement profession would in no manner affect his ability
to decide the case based on the evidence presented."); Bowling v. Commonwealth,
942 S .W.2d 293, 299 (Ky. 1997) ("Being a law enforcement officer is insufficient to
excuse for cause from jury service.") .
Bowling, 942 S.W.2d at 299 ("the mere fact that a person has been the victim of a
similar crime is insufficient to mandate a prospective juror be excused for cause .") .
her son was a victim of an armed robbery. When asked directly whether she
could be fair and impartial, the juror stated she was not sure. The juror's
hesitancy is highlighted all the more because it stands in marked contrast to
her quick disclaimer of any bias stemming from her law enforcement ties and
experience .
Unfortunately, this issue was not deeply explored by follow-up questions .
The last word on this crucial subject was the juror's honest-seeming expression
of doubt about her ability to be fair and impartial . From this scant record, the
Commonwealth asks us to assume a lack of bias while Gunn and Paulley ask
us to assume bias. As stated previously, however, we must afford a criminal
defendant the benefit of the doubt as it pertains to a juror's ability to be
impartial. After all, perhaps nothing strikes more at the heart of having a
fundamentally fair trial than does the seating of an appropriately impartial
jury. Yet, to rule in favor of the Commonwealth, we would be required to find
impartial a juror who refused to so categorize herself. In other words, taking
into account all the facts and circumstances, there is nothing in the record
from which we could definitively conclude this juror was truly impartial .
In the absence of anything concrete to show this juror could have set
aside the feelings she held as the mother of a crime victim, we are forced to
conclude "there is reasonable ground to believe that . . . juror [#220248) cannot
render a fair and impartial verdict on the evidence . .
16
RCr_9.36(1) .
"16
The trial court's erroneous failure to grant the motion to strike
prospective juror #220248 for cause "deprived the defendant[s] of a substantial
right" and, ultimately, led Gunn and Paulley to "not get the trial [they were]
entitled to get." 17 So the error necessitates vacating Gunn's and Paulley's
convictions. We shall next only briefly discuss matters that have a possibility
of recurring on remand or would be dispositive as to at least one charge against
Gunn and/or Paulley.
B. No Entitlement to Directed Verdict.
Both Gunn and Paulley contend they were entitled to directed verdicts. 18
We disagree .
1 . Standard of Review.
The familiar standard for ruling on a motion for directed verdict is as
follows :
On 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 isguilty, 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
Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2008) . See also id. at 343 ("Not
removing a biased juror from the venire, and thereby forcing a defendant to forfeit
a peremptory strike, makes the defendant take on the duty of the court and
prevents him from getting the jury he had aright to choose . This violates a
substantial right accorded great weight in our legal history, and can never be
harmless error.") .
is Though he mentions in passing that he was entitled to a directed verdict as to the
robbery charge, Gunn offers no substantive argument specifically pertaining to
that charge (nor does Paulley) . So we will not discuss whether either Appellant was
entitled to a directed verdict on the robbery charges .
17
questions as to the credibility and weight to be given to such
testimony.
On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a jury
to find guilt, only then the defendant is entitled to a directed
verdict of acquittal. 19
2. Burglary.
Both Gunn and Paulley contend they were entitled to directed verdicts
because there was no evidence that either entered Stone's home. The evidence
showed that, at most, the front door of Stone's residence opened slightly when
it was kicked by Gunn . So Gunn's foot could have crossed the threshold when
the door was ajar. The question of whether entry as slight as this is sufficient
to support a burglary charge has rarely been addressed by this Court,
especially since the adoption of the Kentucky Penal Code in 1974.
As it pertains to this case, a person is guilty of burglary in the first
degree if he "with the intent to commit a crime . . . knowingly enters or remains
unlawfully in a building, and when in effecting entry or while in the building or
in the immediate flight therefrom, he or another participant in the crime . . . [i] s
armed with explosives or a deadly weapon . . .
."2o
The question raised by
Gunn and Paulley is whether a slight entry - here, a foot crossing the
threshold of a residence when a door is kicked slightly ajar - constitutes a
sufficient entry. We hold that it does .
9 Commonwealth v. Benham, 816 S. W.2d 186, 187 (Ky. 1991) .
ao Kentucky Revised Statutes (KRS) 511 .020 1
.
.020(1)(a)
10
Other courts have concluded that even a slight entry is sufficient .2 1 For
example, the Supreme Court of Tennessee has held that "[e]ntry is an
indispensable element in the crime of burglary[ ;] but, to prove entry, it is not
necessary to show that the defendant's whole body made an entrance into the
house ." 22 Instead, as our counterpart in Maine has held, "[a] burglarious entry
is accomplished by the intrusion into the building of any part of the body, an
arm, a hand, a finger[,] or a foot . . .
."23
Although not cited by the parties, our precedent is in general accord with
this "slight entry" rule. At the beginning of the last century, our predecessor
Court had to decide whether loosening a window strip - but not actually
opening the window - was a sufficient "breaking" to constitute breaking into a
warehouse .24 The Court ultimately concluded that no breaking occurred since
there was no actual entry into the warehouse .25 In the course of coming to
that conclusion, the Court cited, with approval, various treatises and scholarly
works that generally agreed that "[a]n actual breaking may be by . . . removing
or breaking a pane of glass, and inserting the hand, or even a finger . . . ."26 In
a similar case, which is also over one hundred years old, our predecessor Court
held that a defendant could not be guilty of breaking into a railroad car without
21
22
23
24
25
26
People v. Walters, 57 Cal.Rptr . 484, 486 (Cal .Ct.App. 1967) ("The slightest entry is
sufficient to constitute the crime of burglary, if it be with felonious intent.") .
State v. Crow, 517 S.W.2d 753, 753 (Tenn. 1974) .
State v. Liberty, 280 A.2d 805, 808 (Me . 1971) .
Gaddie v. Commonwealth, 117 Ky. 468, 78 S.W. 162 (1904) .
Id. at 473, 78 S.W. at 164 .
Id. at 461-72, 78 S .W. at 163.
actually entering the car .27 In the course of arriving at that conclusion, the
Court opined that "an entry into the car, however slight, such as putting the
hand through the opening with the intent to steal property, etc ., therefrom,
would be an entry in the meaning of the statute . . .
."28
After the adoption of the Penal Code, we have, apparently, only had one
occasion to address the continued viability of the slight entry rule ; and that
occasion occurred thirty years ago . In Stamps v. Commonwealth, a defendant
was convicted of third-degree burglary based upon his having penetrated into
the "air pockets of the concrete blocks" at the rear of a store without having
"penetrate[ed] into the store" itselL29 We cited Price and Gaddie for the general
proposition that a slight entry was sufficient but held that the defendant in
Stamps was not guilty of burglary because he had penetrated only the air
pockets in the exterior concrete blocks and not penetrated the interior of the
building. 3 o
So, consistent with precedent and with the viewpoint of other courts, we
reaffirm that even a slight entry is sufficient to support a charge of burglary,
assuming, of course, the evidence supports all the other requisite elements of a
burglary offense, none of which are at issue in these appeals . 31
27
28
29
30
31
Price v. Commonwealth, 129 Ky. 716, 112 S.W. 855 (1908) .
Id. at 718, 112 S.W. at 855.
Stamps v. Commonwealth, 602 S .W .2d 172, 172 (Ky. 1980) .
Id. at 173.
See 12A C.J. S . BURGLARY § 22 (2010) ("Any kind of entry, complete or partial, will
suffice for purposes of a burglary statute . All that is needed is entry inside the
premises, not entry inside some inner part of the premises . Moreover, the slightest
12
Drawing all reasonable inferences in favor of the Commonwealth, a
reasonable juror could have concluded that Gunn's foot crossed the threshold
of Stone's home when Gunn kicked Stone's front door. So the trial court did
not err when it refused to grant Gunn's and Paulley's motions for directed
verdict on the burglary charges .3 2
3. Wanton Endangerment.
Gunn was convicted of nine counts of wanton endangerment - one
count for each person present in Stone's home when Gunn shot through
Stone's front door. Gunn contends his conduct did not support a finding of
guilt on nine counts of wanton endangerment . 33 We disagree .
The Court of Appeals has previously rejected this argument . In West v.
Commonwealth, a defendant was charged with seven counts of wanton
endangerment based upon the seven people who were in the homes into which
the defendant fired . 34 Similarly to Gunn, the defendant in West argued he
should only have been charged with three counts of wanton endangerment
32
33
34
entry is sufficient to constitute the crime of burglary, if it be with felonious intent.
Thus, it is not necessary that the person enter the structure with his or her entire
body, and the least entry of any part of the body of the accused is sufficient, such
as penetration by his or her hand, arm, finger, or foot.") (internal footnotes
omitted) .
Although he, apparently, did not personally kick Stone's door open, there was
sufficient evidence presented from which a reasonable juror could have concluded
that Paulley was guilty of burglary under a complicity theory of liability.
Paulley was convicted of one count of wanton endangerment and does not appear
specifically to challenge that conviction . on appeal. Nevertheless, we must vacate
that wanton endangerment conviction, along with all of Paulley's other convictions,
because of our conclusion the trial court should have excused juror #220248 for
cause .
161 S .W.3d 331, 336 (Ky.App . 2004).
13
since he only fired three shots. After analyzing precedent and the wanton
endangerment statute, KRS 508.060, the Court of Appeals concluded "the
shootings which endangered seven persons in total could be charged as seven
separate offenses of wanton endangerment ."35
We agree with the conclusions and analysis of the Court of Appeals . We
have held that Kentucky's wanton endangerment statute is designed to protect
"each and every person from each act coming within the definition of the
statute . It is not a statute designed to punish a continuous course of
conduct ." 36 So Gunn was properly charged with wanton endangerment as to
each person who was inside Stone's home when Gunn fired into it . The trial
court did not err in refusing to grant Gunn a directed verdict on the nine
counts of wanton endangerment .
4. Murder.
Both Gunn and Paulley contend they each were entitled to a directed
verdict on the murder charge, but their arguments are not framed in precisely
the same manner. So we will discuss each argument separately.
a. Gunn.
Gunn contends he was entitled to a directed verdict on the murder
charge because the Commonwealth's evidence was "scant and unreliable . . . ."
In other words, Gunn's argument is not that the Commonwealth failed to
present any incriminating evidence against him; rather, his argument is that
3s
36
Id. at 337.
Hennemeyer v. Commonwealth, 580 S.W.2d 211, 215 (Ky. 1979) .
14
the evidence presented by the Commonwealth was unreliable or should not be
believed.
Gunn's argument appears improperly to characterize the role of a court
in ruling on a directed verdict motion . When ruling on a motion for directed
verdict, a court "must assume that the evidence for the Commonwealth is
true . . . ."37 We do not weigh the credibility of witnesses because that task is
reserved for the jury.38 Instead, a court must only determine if there is
sufficient evidence from which a reasonable juror could have found a defendant
guilty.
In the case at hand, there is no dispute the Commonwealth presented
evidence showing Gunn both fired the shot that killed Brown and admitted to
others his involvement in shooting Brown . There also was evidence Gunn
knew that at least one person was on the other side of the door when Gunn
fired through it, meaning intent to kill may reasonably have been inferred .39
There was sufficient evidence for a jury to have found Gunn guilty of
intentional murder.
b. Pau1ley.
Paulley's directed verdict argument involves a somewhat confusing
amalgam of what he believes to be insufficient evidence, improper remarks by
37
38
39
Benham, 816 S.W .2d at 187.
See, e.g., Commonwealth v. Shuttles, 80 S .W.3d 424, 426 (Ky. 2002) ("It has long
been held by this Court that intent can be inferred from the act itself and the
surrounding circumstances.") .
15
the Commonwealth, and improper jury instructions . As we understand it,
Paulley contends there was insufficient evidence to convict him of intentional
murder such that the trial court erred by giving the jury a combination
instruction it could have used to find Paulley guilty of either intentional or
wanton murder.40 Compounding the error, in Paulley's view, was the
Commonwealth arguing to the jury that not all of its members had to agree
Paulley was guilty of intentional murder in order for them to convict Paulley of
murder . We reject all of Paulley's arguments.
First, there was sufficient evidence presented for a reasonable juror to
convict Paulley of intentional murder . The Commonwealth presented evidence
showing that Paulley and his cohorts - including Gunn - went to Stone's
home to rob Stone or exact revenge on Stone in furtherance of Stone's ongoing
feud with Eric Ward. Paulley and Gunn went onto Stone's front porch. Paulley
handed Gunn the loaded shotgun Gunn used to shoot Brown through Stone's
door, knowing that someone else was on the other side of the door. The
evidence was sufficient for a reasonable juror to find Paulley guilty of
intentional murder. So the trial court did not err by denying a directed verdict
40
Paulley seems to make no argument there was not sufficient evidence to convict
him of wanton murder . To the extent that either Gunn or Paulley argues there was
insufficient evidence to convict of wanton murder, we disagree . A reasonable juror
could have concluded that although Gunn (acting in concert with Paulley) knew
Stone's home was occupied, Gunn might not have known the precise location of
those occupants . Firing a shot through the door could have been construed as
conduct "manifesting extreme indifference to human life" and "creat[ing] a grave
risk of death to another person . . . ." KRS 507
.
.020(1)(b)
16
as to intentional murder or by instructing the jury it could find Paulley guilty of
intentional murder.
Since Paulley does not argue he was entitled to a directed verdict on a
charge of wanton murder and there was sufficient evidence to support a
conviction for intentional murder, it was not inherently improper for the trial
court to instruct the jury on both theories .41
Finally, we reject Paulley's argument for relief based upon the
Commonwealth's statements to the effect that the jurors did not have to all
agree on whether Paulley was guilty of wanton or intentional murder. We have
recently re-emphasized that a jury need not unanimously agree on a specific
theory of guilt, provided all theories of guilt available to the jury are supported
by sufficient evidence . 42 So the prosecutor did not misstate the law by opining
that although all twelve jurors had to believe Gunn and Paulley committed
murder, they did not have to take the same "road" or "path" to reach that
conclusion . 4 3
41
42
43
Benjamin v. Commonwealth, 266 S.W .3d 775, 784 (Ky. 2008) ("when the evidence
will support either mental state beyond a reasonable doubt, a combination murder
instruction is certainly proper.") .
Beaumont v. Commonwealth, 295 S.W.3d 60, 72 (Ky. 2009) ("Although Section 7 of
the Kentucky Constitution requires a unanimous verdict reached by a jury of
twelve in all criminal cases, [i]t is not necessary that a jury, in order to find a
[unanimous] verdict, should concur in a single view of the transaction disclosed by
the evidence. Rather, where the proof of either [theory] beyond a reasonable doubt
constitutes the same offense, the inquiry turns on whether the interpretations are
supported by the evidence .") (internal citations and quotation marks omitted) .
Paulley and Gunn each complain about the prosecutor stating to the jury that
intentional murder only required proof of intent to shoot, not intent to kill . For
intentional murder, KRS 507.020(1)(a) requires someone to act with "intent to
cause the death of another person . . . ." Moreover, the commentary to
17
5. Jury Verdict Irregularities .
The jury initially returned verdicts finding Paulley and Gunn guilty of all
homicide and burglary charges - both principal and every lesser-included
offense. Specifically, as to the homicide, Gunn and Paulley were each found
guilty of murder, manslaughter in the first degree, and manslaughter in the
second degree ; Paulley was additionally found guilty of facilitation to murder,
facilitation to manslaughter in the first degree, and facilitation to manslaughter
in the second degree . As to burglary, Gunn and Paulley were each found guilty
of both burglary in the first degree and attempted burglary in the first degree .
When questioned by the trial court, the foreperson stated that the jury had
found the defendants guilty of all counts because the Commonwealth had
stated in closing that the defendants were guilty of the lesser offenses if they
were guilty of the principal offenses. Over objection, the trial court denied
motions for directed verdicts on the greater offenses and motions for mistrial.
Instead, after an overnight recess, the trial court directed the jury to return to
deliberations and clarify under which homicide or burglary theories it intended
KRS 507 .020 makes it clear that "KRS 507 .020(1)(a) designates as murder a
homicide that results from conduct of a person whose conscious objective is to
cause another's death." So it appears, the prosecutor's statement to the contrary
was erroneous. The parties dispute whether this issue was properly preserved for
review. But we need not determine whether that statement entitles either to relief
for two reasons . First, the case is being remanded for other reasons; and we trust
the Commonwealth's statements on remand will be carefully tailored to follow the
law. Second, Paulley states in his reply brief that "[w]hile the prosecutor's
misleading argument on requisite proof of intent is important to an understanding
of what knowledge the jury was armed with when it deliberated, it is not the error
on which Mr. Paulley requests relief." (emphasis added). Similarly, Gunn states in
his reply brief he "is not arguing for a new trial based upon prosecutorial
misconduct or improper closing argument."
18
to convict Paulley and Gunn.44 After renewed deliberations, the jury returned
verdicts finding Paulley and Gunn guilty of the principal offenses, murder and
robbery in the first degree.
On appeal, Gunn and Paulley contend they were entitled to a directed
verdict on the greater offenses or a mistrial . Obviously, this unique factual
scenario is highly unlikely to recur on remand. And we are highly skeptical
that a mistrial was warranted. However, we need not definitively determine
whether Paulley and Gunn were entitled to such a drastic curative measure
because their cases are already being remanded to the trial court on other
grounds. Nevertheless, we shall briefly discuss the directed verdict argument
since Gunn and Paulley would not be eligible to be retried on the principal
offenses of murder and robbery if we accept their argument that the jury's
finding of guilt on the lesser-included offenses entitled them to a directed
verdict on the principal offenses.
We have already held there was sufficient evidence to submit the
principal burglary and murder charges to the jury. Moreover, the jury's highly
unusual verdicts cannot be deemed an acquittal - implied or actual - of any
44
The parties disagree as to whether the jury was deliberating when it was released
for the night --= prior to the time the next day when the trial court ordered it to
again deliberate to clarify the verdicts it had rendered. Sequestration is mandatory
while a jury is deliberating guilt on a felony charge, RCr 9.66 . But sequestration is
not mandatory between the guilt and penalty phases of a trial. See, e.g., Bowling v.
Commonwealth, 873 S.W.2d 175, 182 (Ky. 1993) ("RCr 9.66 does not require that
jurors be sequestered between the guilt and penalty phases of the trial.
Sequestration is required only after a felony case has been submitted to a jury for
its verdict.") . We need not resolve whether sequestration was required under these
highly peculiar facts because neither Gunn nor Paulley has demonstrated any
concrete prejudice from the lack of sequestration, and their convictions are being
vacated and remanded on other grounds .
19
principal charges since the jury also expressly found Paulley and Gunn guilty
of the principal offenses . So the doctrine of implied acquittal provides no relief
to either Gunn or Paulley since there were no acquittals.
Our precedent is clear that "[a] defendant may not be charged and
convicted of both a major offense and lesser-included offense arising out of the
same facts."45 So the jury's initial finding of guilt on both principal and lesser
included offenses was erroneous . But precedent counsels us to view the jury's
improper findings of guilt on lesser-included offenses as being mere
surplusage, especially since the trial court inquired of the jury about its intent
and permitted the jury to correct its error.46 So the jury's improper initial
verdicts do not entitle Gunn or Paulley to relief, nor does the curative action
the trial court took in order to correct the jury's errors .
C. No Error in Refusing to Grant Separate Trials.
Both Paulley and Gunn contend the trial court erred by ordering them to
be tried together, along with co-defendant Taylor . Their arguments focus
mostly on the purported unfairness of having Taylor, who had already struck a
deal with 'the Commonwealth at the time of trial, being permitted to sit at the
defense table and being afforded the opportunity to collaborate upon such
45
46
McGinnis v. Wine, 959 S.W.2d 437, 439 (Ky. 1998) .
See, e.g., United States v. Howard, 507 F.2d 559, 561-63 (8th Cir. 1974) (finding
jury's verdicts of guilt on lesser-included offenses to be surplusage and refusing to
order that defendant be sentenced on only lesser-included offenses instead of
principal offenses) ; McGinnis, 959 S. W.2d at 439 (finding jury's improper finding of
not guilty on lesser-included offenses to be surplusage for which retrial was not
barred and opining that asking jury to again deliberate in order to return a proper
verdict "may have been the better course . . . .
11) .
20
matters as peremptory strikes. But Taylor was, in Paulley's words,
"inexplicably acquitted" by the jury. So there appears to be no possibility that
Taylor will again stand trial with Gunn and Paulley on remand . In other
words, any issues involving the purported prejudice Gunn and Paulley suffered
as a result of being jointly tried with Taylor are moot. Instead, our focus must
be on whether the trial court erred by trying Paulley and Gunn together, i. e.,
whether they may be again tried together on remand .
The main argument made by Paulley and Gunn is, essentially, that a
joint trial was prejudicial to each of them because they had antagonistic
defenses. "A criminal defendant is not entitled to severance unless there is a:
positive showing prior to trial that joinder would be unduly prejudicial ."47 And,
antagonistic defenses, including defendants casting blame on each other,
standing alone, are not unfairly prejudicial and do not invariably mandate
separate trials .48 Actually, the fact that defendants may have conflicting
versions of the events in question "or the extent to which they participated in
[them], vel non, is a reason for, rather than against, a joint trial. If one is lying,
it is easier for the truth to be determined if all are required to be tried
47
48
Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992).
See, e.g., Davis v. Commonwealth, 967 S.W.2d 574, 581 (Ky. 1998) ("Even if the
defendants attempt to cast blame on each other, severance is not required .") ;
Ware v. Commonwealth, 537 S.W.2d 174, 177 (Ky. 1976) ("neither antagonistic
defenses nor the fact that the evidence for or against one defendant incriminates
the other amounts, by itself, to unfair prejudice .") .
21
together."49 And it must be borne in mind that a trial court has "considerable
discretion" in ruling upon a severance motion .5p
We reject Gunn's specious argument that there was no evidence against
him and that he must have been, essentially, found guilty by association or
because he was framed by his co-defendants. This is merely a clever attempted
variation on his previously rejected argument that he was entitled to a directed
verdict. We have already held there was sufficient evidence to submit the
charges to the jury, and it was up to the jury to sift through the evidence to
determine what it believed and what it rejected . The facts and circumstances
underlying the charges against both Gunn and Paulley were the same ; and,
taking into account all the facts and circumstances of these cases, we conclude
the trial court did not abuse its discretion by ordering Gunn and Paulley be
tried together.51
D. Exclusion of Paulley's Statement.
The final issue we must discuss is raised by Gunn alone . Gunn
contends the trial court erred by excluding on hearsay grounds a statement
purportedly made by Paulley that Ward fired the fatal shot. We disagree with
the argument that the trial court erred.
49
50
51
Ware, 537 S.W.2d at 177.
Humphrey, 836 S. W.2d at 868.
On remand, of course, the parties may again ask the trial court for separate trials.
Our holding in these appeals should not be construed as a mandate that Gunn
and Paulley must be jointly tried upon remand; that decision must be made by the
trial court after consideration of any arguments made for, or against, a joint trial
by Gunn, Paulley, and the Commonwealth . Instead, our holding is only that
neither Gunn nor Paulley is entitled to relief by virtue of having already been tried
together .
22
Megan Sanders was an acquaintance of Paulley and, along with others,
spent time with Paulley in a park shortly after Brown was killed . When called
as a witness by the Commonwealth, Sanders began to relate her version of the
events on the night in question. During the early portions of Sanders's
testimony, the Commonwealth requested a bench conference at which the
Commonwealth stated it believed that Sanders would shortly testify that
Paulley had told Sanders that Ward had fired the shot that killed Brown. The
Commonwealth stated that such a. statement was inadmissible hearsay;
Gunn's counsel stated that the statement should be admitted as a statement
against interest. The trial court ruled the Commonwealth was not required to
introduce any statements in its own case that it did not wish to introduce . The
trial court then stated it believed the statement would be inadmissible hearsay
if defense counsel sought to introduce it on cross-examination . When Gunn
later sought to question Sanders about Paulley's alleged statement about Ward
having been the shooter, the trial court ruled the statement inadmissible .
All parties seem to agree the statement - whatever its precise content
would have been - would have been hearsay. And hearsay is not admissible,
unless it fits within an exception to the hearsay rule . 52
Gunn argues two main exceptions to the hearsay rule. Neither is
persuasive.
52
See, e.g., Walker v. Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009) ("A
fundamental rule in the law of evidence is that hearsay evidence is inadmissible
evidence . However, hearsay evidence may be admissible if it meets one of our well
established exceptions.") (internal quotation marks omitted) .
23
First, Gunn argues that the statement should have been deemed
admissible under the holding of Chambers v. M ssissippi.53 We have
summarized the pertinent aspects of Chambers as follows:
In Chambers, another person, McDonald, who was not charged
with the offense, had signed a sworn confession to having
committed the murder . He had also made unsworn statements to
others in which he admitted being the killer. The defendant was
permitted to call McDonald as a witness and to introduce the
sworn, written confession . However, McDonald denied committing
the murder and recanted the confession, offering a plausible
explanation for having originally signed it. Under Mississippi's
"voucher" rule of evidence, the defendant was prohibited from
thereafter impeaching McDonald, his own witness, either by crossexamination or by use of his prior unsworn statements.
Mississippi's hearsay rule did not permit McDonald's prior
inconsistent, but unsworn, statements to be used for substantive
purposes, and did not contain an exception for hearsay statements
against penal interest. Thus, the defendant could not rebut
McDonald's recantation of his sworn confession and was
essentially prevented from presenting his best defense to the
charges against him. It was held under those circumstances that
where constitutional rights directly affecting the ascertainment of
guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends ofjustice.s4
Plainly, Chambers is distinguishable from the case at hand . Chambers
was concerned with a situation, in which a defendant could not impeach his
own witness and whether that inability deprived a defendant of a right to
defend himself -- a concern not present in the case at hand. Equally
important, the statement at issue in Chambers was self-incriminating; Paulley's
alleged statement at issue in the present case directly incriminated Ward and
53
54
410 U.S . 284 (1973) .
Dillard v. Commonwealth, 995 S.W.2d 366, 372 (Ky. 1999) (citations and quotation
marks omitted) .
24
only indirectly incriminated Paulley by, at most, merely placing Paulley at the
scene of the shooting . So we do not believe that Chambers applies, nor that
our longstanding rules deeming hearsay inadmissible are, in. this case, being
"applied mechanistically to defeat the ends of justice ." 55
Gunn's second argument in favor of the statement's admissibility is even
less meritorious . Gunn contends that the statement was admissible as the
statement of a party-opponent.56 We have recently rejected an identical
argument, explaining that "[flora party to use another's statement against
them, the express language of the rule [i.e., KRE 801A] and general
understanding indicate that such use can only occur between party opponents.
Co-defendants in a criminal prosecution are treated as the same party for
purposes of the rule ." 57 So the statement at issue, being the statement of a codefendant, does not fall within the ambit of KRE 801A .
IV. CONCLUSION.
For the foregoing reasons, Steven Paulley's and Henny Gunn's
convictions are vacated; and their cases are remanded to the trial court for
proceedings consistent with this opinion.
55
56
57
Chambers, 410 U.S. at 302.
See Kentucky Rules of Evidence (KRE) 801A(b)(1) ("A statement is not excluded by
the hearsay rule, even though the declarant is available as a witness, if the
statement is offered against a party and is . . . [t]he party's own statement . . . .").
Walker, 288 S.W.3d at 740 (emphasis and internal footnote omitted) .
25
All sitting. Abramson, Noble, and Scott, JJ ., concur. Venters, J .,
concurs, in part, and dissents, in part, by separate opinion in which
Cunningham and Schroder, JJ., join.
VENTERS, J., CONCURRING, IN PART, AND DISSENTING, IN PART:
While I otherwise agree with the sound rationale expressed by the Chief Justice
in the majority opinion, I must part company with my colleagues regarding the
burglary convictions . Appellants Paulley and Gunn should have been granted
a directed verdict dismissing the burglary charges because the evidence
presented, when viewed most favorably to the Commonwealth, failed to prove
the essential element of entry into the residence.
I have no quarrel with our longstanding and well-settled rule of law that
the element of entry contained in our burglary statutes is satisfied by proof of a
slight entry into a building by a perpetrator's head, hand, foot, or other body
part, or the extension of same by an instrument with which he or she intends
to commit a crime. But conviction still requires proof beyond reasonable doubt
of some entry, however slight. Evidence of slight entry is far different from
slight evidence of entry.
Here, there is no evidence of entry. There is only an inference of slight
entry. As stated in the majority opinion: "The evidence showed that, at most,
the front door of Stone's residence opened slightly when it was kicked by Gunn.
So Gunn's foot could have crossed the threshold when the door was ajar."
(Emphasis added.) In its entirety, the evidence established that Gunn knocked
on the door; and when no one opened it, he kicked it, twice according to some
26
witnesses and two or three times according to another. When the door still
failed to open, Gunn fired the fatal shots through the door and left the porch .
When the police arrived, the door was still locked with the victim leaned
against it. It had never completely separated from the doorjamb. At most,
Gunn's kicking flexed the lower portion of the door enough to allow witnesses
to see light shine through. No one saw a foot or any part of Gunn's body, nor
even his shoe or any instrument cross the threshold. That his foot "could
have" done so may amount to probable cause, but it falls far short of proof
beyond a reasonable doubt. Under the facts of this case, it was clearly
unreasonable for a jury to believe beyond a reasonable doubt that Gunn or any
part of his body even slightly entered the building.
There was no doubt whatsoever that Gunn kicked the door in an
unsuccessful attempt to gain entry. If that constitutes burglary, what then
constitutes an attempted burglary? Stepping onto the porch? Knocking on the
door?
Given the evil deeds of Gunn and Paulley and the multiple sentences
imposed upon them for crimes that were properly supported by sufficient
evidence, one might be tempted to regard this issue as having no real
consequences. The burglary sentences are totally subsumed by the life
sentences imposed for the murder of Rocky Brown. But the majority's holding
that this evidence is sufficient to support a burglary conviction will henceforth
govern when a burglary conviction matters mightily. We must not forget that
this was a capital murder case in which the burglary charge was an essential
27
aggravating factor for the imposition of a death penalty . This holding will also
revisit us with the most distasteful consequences when the scant inference of
slight entry converts a hard knock on a door into a Persistent Felony Offender
(PFO) sentence of twenty-plus years; or when we see a young man, who should
have been convicted for harassment or attempted burglary, become a felon
because he pounded too hard on a door before giving up and going home .
For the reason set forth above, I would reverse the burglary convictions .
I respectfully concur, in part, and dissent, in part, with, the majority opinion.
Cunningham and Schroder, JJ., join .
COUNSEL FOR APPELLANTS:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Roy Alyette Durham, II
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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