KEELIN GRAY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000460-MR
KEELIN GRAY
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
ACTION NO. 99-CR-00003
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Keelin Gray (Gray) appeals from a judgment and
sentence on plea of not guilty (jury trial) entered by the Wayne
Circuit Court on February 15, 2000.
We affirm in part, reverse
in part and remand.
Gray was indicted on the charge of burglary first
degree (KRS 511.020) arising from an incident that occurred on
November 19, 1998.
After discovery was completed and several
bill of particular motions were argued before the trial court, a
jury trial was scheduled for December 23, 1999.
However, the
trial did not take place on that date but was reassigned for
January 13, 2000.
Prior to the new trial date, the Commonwealth
conveyed an offer of a plea agreement to Gray’s attorney.
After
the attorney discussed the plea offer with Gray, she informed the
Commonwealth that Gray would accept the offer.1
No further
action was taken by either party until the day of the trial,
January 13, 2000.
On that day, in the judge’s chambers, the
parties acknowledged to the trial court that they had reached a
plea agreement.
However, when the Commonwealth informed the
trial judge that the alleged victim of the crime was “not happy”
with the offer but that the police were okay with it, the trial
judge stated, “It appears the parties have not had a meeting of
the minds.
The Court never accepted any plea.
The court was
contacted but the court never accepted any plea.
I’m going to
overrule the motion for a continuance and motion to bind the
Commonwealth to the plea.
Let’s go to trial.”
Gray’s attorney
then asked the court, “If I make a motion to enter a plea of
guilty at this time are you going to overrule it?”
court replied, “I am.”
To which the
The jury trial then began despite claims
of counsel for Gray claims that she was not ready to proceed with
the trial.
The jury returned a guilty verdict and recommended a
ten year sentence, which the court imposed.
This appeal
followed.
On appeal, Gray raises four arguments:
(1)
The trial court abused its discretion in
denying his motion to bind the
Commonwealth to the plea agreement;
1
Although no formal plea agreement document is found in the
record, it appears that the agreement reached would permit Gray
to plea guilty to burglary second degree and be sentenced to five
years’ imprisonment, with Gray serving 90 days and the balance
probated for five years.
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(2)
The trial court erred by failing to
grant him a continuance;
(3)
The trial court erred in not giving a
facilitation instruction as requested;
(4)
The trial court erred by not allowing
him to cross-examine a witness about a
pending charge which would have shown
witness bias.
As to Gray’s first argument, we believe he is mistaken
that the Commonwealth “welshed” on the plea agreement.
It is
clear from the hearing that the Commonwealth agreed to the plea
agreement and never attempted to withdraw from the bargain.
It
was the trial court that refused to accept the plea bargain and
it so informed Gray and his counsel of that fact.
RCR 8.10 were complied with in this case.
RCR 8.08 and
The trial court is
given discretion in whether it will accept or reject a plea
agreement.
In this case it is clear that when the court was
informed that the alleged victim was “not happy” with the
Commonwealth’s recommended plea agreement, the court properly
exercised its discretion in refusing to accept the proposed plea
bargain and promptly and thoroughly informed the parties of such
fact.
We believe the case of Skinner v. Commonwealth, Ky., 864
S.W.2d 290 (1993) and Cobb v. Commonwealth, Ky. App., 821 S.W.2d
817 (1992), thoroughly address this issue.
In Skinner, our
Supreme Court held:
According to RCR 8.08, the court “may
refuse to accept a plea of guilty.” The
discretion of the trial court exists whether
the proposed guilty plea is offered with or
without consideration in the form of a plea
agreement. In view of that discretion, we
are unable to conclude that Skinner could
have reasonably relied on the purported
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agreement to the point of neglecting his
defense in the event of rejection.
Skinner, supra, at 294.
The Cobb case addresses whether the court’s refusal to
accept a plea agreement was arbitrary and capricious.
In
rejecting that argument, the Court stated:
On appeal it is argued that the trial
court acted as both judge and prosecutor in
refusing to accept the plea when the
Commonwealth had no objection to its entry.
Cobb maintains that the denial was arbitrary
and capricious. We disagree.
[1] RCR 8.08 pertains to guilty pleas
and provides as follows:
A defendant may plead not guilty,
guilty or guilty but mentally ill.
The court may refuse to accept a
plea of guilty or guilty but
mentally ill, and shall not accept
the plea without first determining
that the plea is made voluntarily
with understanding of the nature of
the charge. If a defendant refused
to plead or if the court refuses to
accept a plea of guilty or guilty
but mentally ill or if a defendant
corporation fails to appear, the
court shall enter a plea of not
guilty.
There is no requirement, constitutional
or otherwise, that a court accept a guilty
plea. Keller v. Commonwealth, Ky. App., 719
S.W.2d 5 (1986). Moreover, the rule itself
specifically provides that “[t]he court may
refuse to accept a plea of guilty....”
Cobb, supra, at 818.
Based upon the foregoing cases, we believe the trial
court properly acted within its authority in refusing to accept
the plea agreement and no abuse of discretion has been shown by
Gray.
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As to Gray’s next argument, we
believe the trial court
did abuse its discretion in refusing to grant Gray a continuance.
The criminal rules and case law are clear that the granting of a
continuance is solely within the discretion of the trial court;
however, that discretion is not without limits.
The trial judge has broad discretion in
either granting or refusing a
continuance. Pelfrey v. Commonwealth,
Ky., 842 S.W.2d 524 (1993). A reviewing
court will not reverse a criminal
conviction unless the trial court abused
its discretion in the denial of a
continuance. Abbott v. Commonwealth,
Ky., 822 S.W.2d 417 (1992). In order to
obtain a continuance, a criminal
defendant must show sufficient cause.
Abbott, supra; RCR 9.04. Sufficient
cause was not established here. A
careful examination of the record in
this case indicates that there was no
abuse of discretion by the trial judge.
Dishman v. Commonwealth, Ky., 906 S.W.2d 335, 339 (1995).
Gray cites this Court to the case of Eldred v.
Commonwealth, Ky., 906 S.W.2d 594 (1995), which held that the
trial court had abused its discretion by not granting a
continuance in a complex capital murder case.
In Eldred, the
Court addressed the issue of continuances as follows:
The first issue presented is whether the
trial court abused its discretion in not
granting Appellant’s motion for a continuance
of sixty days. A continuance will be granted
upon a showing of sufficient cause. RCR
9.04; Snodgrass v. Commonwealth, Ky., 814
S.W.2d 579, 581 (1991). The decision as to
whether to grant a continuance is within the
sound discretion of the trial court based
upon the unique facts and circumstances of
the case. Snodgrass, 814 S.W.2d at 581.
Factors that should be considered by the
trial court include:
(1) The length of delay;
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(2) Whether there have been any
previous continuances;
(3) The inconvenience to the
litigants, witnesses, counsel, and
the court;
(4) Whether the delay is purposeful
or caused by the accused;
(5) The availability of competent
counsel, if at issue;
(6) The complexity of the case; and
(7) Whether denying the continuance
would lead to any identifiable
prejudice.
Id. We also note that Appellant’s case was a
capital case, with the death penalty
possible, which makes the case qualitatively
different. See Smith v. Commonwealth, Ky.,
845 S.W.2d 534 (1993).
Eldred, Id. at 699.
Reviewing the case before us under the standard set
forth in Dishman and Eldred, we believe the trial court abused
its discretion when it denied Gray’s motion for a continuance.
It is clear that Gray’s counsel had relied upon the
Commonwealth’s plea offer and had not taken additional action to
be ready for a trial by jury.
Though we do not condone counsel’s
dilatory lack of preparation, we believe Gray was entitled to a
continuance in this matter.
Though we are reversing and remanding for a new trial,
we shall address Gray’s remaining two arguments.
Gray’s next
contention is that he was entitled to an instruction on criminal
facilitation.
Although this issue was not properly preserved
because Gray failed to comply with RCR 9.54, we will address it
in that he was not entitled to a criminal facilitation
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instruction based upon the evidence offered at trial.
Gray cites
the case of Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977),
for the proposition that he was entitled to an instruction on
criminal facilitation.
However, the more recent case of Houston
v. Commonwealth, Ky., 975 S.W.2d 925 (1998) (which also addresses
Luttrell) thoroughly reviews this issue and holds that criminal
facilitation is not a lesser included “object” offense.
Specifically, Houston states:
Although a trial judge has a duty to
prepare and give instructions on the whole
law of the case, including any lesser
included offenses which are supported by the
evidence, Swain v. Commonwealth, Ky., 887
S.W.2d 346, 348 (1994), that duty does not
require an instruction on a theory with no
evidentiary foundation. Barbour v.
Commonwealth, Ky., 824 S.W.2d 861, 863
(1992), overruled on other grounds, McGinnis
v. Commonwealth, Ky., 875 S.W.2d 518 (1994);
Neal v. Commonwealth, Ky., 303 S.W.2d 903
(1957). An instruction on a lesser included
offense is required only if, considering the
totality of the evidence, the jury might have
a reasonable doubt as to the defendant’s
guilt of the greater offense, and yet believe
beyond a reasonable doubt that he is guilty
of the lesser offense. Wombles v.
Commonwealth, 831 S.W.2d 172, 175 (1992). It
is axiomatic that “one’s mere presence at the
scene of a crime is not evidence that such
one committed it or aided in its commission.”
Rose v. Commonwealth, Ky., 385 S.W.2d 202,
204 (1964). In the absence of any evidence
that Appellant was guarding the contraband
for others, his mere presence at the scene
would not have supported a conviction of
criminal facilitation on that theory.
Even if there had been evidence that
Appellant was guarding the drugs and
paraphernalia for others, such would not have
entitled him to an instruction on criminal
facilitation as a lesser included offense.
The fact that the evidence would support a
guilty verdict on a lesser uncharged offense
does not establish that it is a lesser
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included offense of the charged offense.
Whalen v. Commonwealth, Ky. App., 891 S.W.2d
86 (1995); Hart v. Commonwealth, Ky. App.,
768 S.W.2d 552 (1989). The definition of a
lesser included offense is contained in KRS
505.020(2), viz:
A defendant may be convicted of an
offense that is included in any
offense with which he is formally
charged. An offense is so included
when:
(a)
It is established by
proof of the same or less
than all the facts
required to establish the
commission of the offense
charged; or
(b)
It consists of an attempt
to commit the offense
charged or to commit an
offense otherwise
included therein; or
(c)
It differs from the
offense charged only in
the respect that a lesser
kind of culpability
suffices to establish its
commission; or
(d)
It differs from the
offense charged only in
the respect that a less
serious injury or risk of
injury to the same
person, property or
public interest suffices
to establish its
commission.
Subsections (b), (c) and (d) have no
application to the facts of this case. Thus,
the inquiry is whether the inchoate offense
of criminal facilitation is established by
proof of the same or less than all the facts
required to establish the commission of the
charged offenses of trafficking in or
possession of a controlled substance. Perry
v. Commonwealth, Ky., 839 S.W.2d 268, 272
(1992). The offenses of trafficking in or
possession of a controlled substance require
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proof that the defendant, himself, knowingly
and unlawfully committed the charged offense.
KRS 218A.1412; KRS 218A.1415. The offense of
criminal facilitation requires proof that
someone other than the defendant committed
the object offense and the defendant, knowing
that such person was committing or intended
to commit that offense, provided that person
with the means or opportunity to do so. KRS
506.080(1). Thus, criminal facilitation
requires proof not of the same or less than
all the facts required to prove the charged
offenses of trafficking in or possession of a
controlled substance, but proof of additional
and completely different facts. A fortiori,
it is not a lesser included offense when the
defendant is charged with committing either
of the object offenses.
This conclusion is in accord with the
general view of those states with criminal
facilitation statutes that the offense is not
a lesser included offense of an object
offense.
...
The only Kentucky case holding that
criminal facilitation is a lesser included
offense of an object offense is Farris v.
Commonwealth, Ky. App., 836 S.W.2d 451
(1992). In Farris, the Court of Appeals did,
indeed, make the bald assertion that criminal
facilitation is a lesser included offense of
trafficking in a controlled substance. Id.
at 454. However, the only authority cited
for that proposition was Jackson v.
Commonwealth, Ky., 633 S.W.2d 61 (1982),
which does not address criminal facilitation
in any shape, form, or fashion. The issue in
Jackson was whether possession of a
controlled substance is a lesser included
offense of trafficking in a controlled
substance. Id. at 62. The opinion in Farris
contains no analysis, cites inapplicable
authority, and is contrary to existing
precedent interpreting KRS 505.020(2). It is
hereby overruled.
Since Appellant was not entitled to an
instruction on criminal facilitation as a
lesser included offense of the object
offenses of trafficking in or possession of a
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controlled substance, there was no error in
the trial court’s ruling.
Houston, Id. at 929, 930, 931.
Gray did not testify at trial nor was there any
evidence produced that would justify a criminal facilitation
instruction in this case.
The trial court did not err in this
matter.
Gray’s final argument on appeal is that he should have
been entitled to question Robert Sloan, a witness who testified
for the Commonwealth, about a criminal charge pending against him
to show bias.
Upon remand, this issue should not re-occur.
However, we shall address this issue in the context appealed.
Gray cites Commonwealth v. Cox, Ky., 837 S.W.2d 898 (1992), in
support of his contention.
In response the Commonwealth argues
that Gray failed to properly object to this issue and thus the
issue is not preserved for appellate review.
At trial, counsel
for Gray asked Sloan during cross-examination whether he had
criminal charges pending against him at this time.
The
Commonwealth objected and the court sustained the objection and
admonished the jury to disregard that question.
continued cross-examination of the witness.
Gray then
After each party
rested, Gray’s counsel then announced she wanted to put into the
record the reason for questioning Sloan regarding his pending
charges was to attack his credibility based upon bias.
The court
noted that during the examination, counsel only made a general
objection, that no specific reason for that objection had been
given, and that the evidentiary portion of the trial had
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concluded.
Based upon our review of the record, we believe Gray
failed to properly preserve this issue for appeal.
When a defendant fails to request appropriate relief on
a timely basis, the matter will not be considered as plain error
for reversal on appeal.
RCr 9.22; West v. Commonwealth, Ky., 780
S.W.2d 600 (1989); Crane v. Commonwealth, Ky., 833 S.W.2d 813
(1992).
When a trial court has not had an appropriate
opportunity to rule on an issue, the appellate court is unable to
review the alleged error.
S.W.2d 794 (1994).
Sherley v. Commonwealth, Ky., 889
However, were this issue properly before us
we believe that any error would have been harmless error.
Under
the Cox case, noted by Gray, our Supreme Court stated that if the
defendant’s opportunity to impeach a witness for bias was
improperly denied (thus violating the confrontation clause), the
error is subject to the harmless error analysis as set forth in
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967), and as applied in Crane v. Commonwealth, Ky., 726 S.W.2d
302 (1987).
Though the trial court may have erred in refusing to
permit the questioning of Sloan as to pending criminal charges,
we believe it was harmless error.
As stated in Crane:
The test for harmless error is whether
there is any reasonable possibility that
absent the error the verdict would have been
different. Commonwealth v. McIntosh, Ky.,
646 S.W.2d 43 (1983). Because the test is
phrased in terms of “reasonable possibility,”
an error of constitutional proportions must
be shown to be harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18,
87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The
question here is not whether the jury reached
the right result regardless of the error, but
whether there is a reasonable possibility
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that the error might have affected the jury’s
decision.
Crane, Id. at 307.
The evidence in this case was overwhelming against
Gray.
A witness identified him “beyond a shadow of a doubt,” he
confessed to his former girl-friend (and daughter of the victim),
his vehicle was identified as leaving the scene of the crime, he
was identified as selling the stolen property to two separate
witnesses, and it was testified that he was one of a few people
who knew where the guns were located in the house.
The issue as to the bias testimony was not properly
preserved for our review, but even if it had been, it was
harmless error.
It is our view that there is no reasonable
possibility the verdict of the jury would have been different had
the erroneous exclusion of evidence not occurred.
The judgment of the Wayne Circuit Court is affirmed in
part, reversed in part and remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR FOR APPELLEE:
A. B. Chandler, III
Attorney General
Bruce A. Brightwell
Louisville, KY
Tami Allen Stetler
Assistant Attorney General
Frankfort, KY
ORAL ARGUMENT FOR APPELLEE:
Tami Allen Stetler
Assistant Attorney General
Frankfort, KY
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