STANLEY JARMAL SMOTHERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000788-MR
STANLEY JARMAL SMOTHERS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS PAISLEY, JUDGE
ACTION NO. 99-CR-00845
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
By judgment entered March 21, 2000, the Fayette
Circuit Court convicted Stanley Jarmal Smothers of first-degree
wanton endangerment1 and second-degree fleeing or evading police2
and sentenced him to concurrent sentences of one year and six
months, respectively.
The judgment confirmed a jury verdict
finding Smothers guilty of having pointed a handgun at Lavan
Franklin and of having fled from police officers who were
responding to Franklin’s subsequent complaint.
1
KRS 508.060.
2
KRS 520.100.
Smothers admitted
having exchanged heated words with Franklin on the day in
question, but denied having pointed a gun at him.
He also
conceded that later the same day he had been a passenger in his
cousin Hughes’s car during a wild flight from several police
officers, but claimed that the flight had been entirely Hughes’s
doing.
Smothers raises two issues on appeal.
He contends that
he was entitled to a directed verdict dismissing the charge of
fleeing or evading.
And he complains that the Commonwealth and
Hughes, his co-defendant, improperly cross-examined him
concerning his guilty plea in an unrelated matter.
Persuaded
that the improper cross-examination was harmless error and that
Smothers is not otherwise entitled to relief, we affirm the trial
court’s judgment.
The events giving rise to the charges against Smothers
took place on July 14, 1999, in Lexington.
Franklin testified
for the Commonwealth that early that afternoon he had been
visiting his girlfriend.
He had come out of her house to
retrieve something from his car when Smothers and Hughes pulled
up in a black Honda.
yelling at him.
Smothers emerged from the Honda and began
Franklin claimed to have had only the most
passing acquaintance with Smothers and to have understood neither
the content of nor the reason for Smothers’s verbal assault.
The
yelling continued, however, until at one point Smothers told him,
“If you want to settle this with guns that’s alright with me.”
Smothers thereupon returned to the Honda, and Franklin turned
toward his girlfriend’s house.
When, a moment later, he turned
again toward Smothers, Smothers, he claimed, was pointing a black
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pistol at him.
The commotion had brought Franklin’s girlfriend
from her house, and when she saw what was happening she went back
inside to phone the police.
Smothers then climbed into the
Honda’s passenger seat, and he and Hughes drove away.
Several hours later, Franklin’s testimony continued,
between five and six o’clock that evening, he had been in his car
on an errand when he saw Smothers and Hughes trying to flag him
down.
He refused to stop, but, when the two men followed him, he
became frightened and drove to the sheriff’s department near the
district courthouse in downtown Lexington.
No sooner did he
arrive in the parking lot there and get out of his car than
Smothers and his cousin arrived there, too.
This time, he
alleged, both men got out of their car and approached him,
shouting and cursing as they came.
officer intervened.
Almost immediately, a police
The officer ordered Smothers and Hughes to
return to their vehicle, which, after a brief resistence, they
did, and to keep their hands in sight on the steering wheel and
dash board.
He then asked Franklin what was going on.
Franklin
told him about the incident earlier that day and in particular
about Smothers’s brandishing a gun.
The officer then turned to
the Honda, approaching it on the driver’s side.
Suddenly, Hughes
had put the Honda into reverse and had attempted to speed
backwards out of the narrow parking lot.
Franklin had lost sight of the Honda when it backed
around a corner, but several police witnesses testified as to
what happened next.
scene.
Deputy Marlin was the first officer on the
He had happened to be in the sheriff’s department parking
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lot when Franklin, Smothers, and Hughes made their disruptive
arrival.
He radioed for assistance and then sought to restore
order and to investigate.
When Franklin told Marlin that earlier
Smothers had threatened him with a gun, Marlin turned his
attention to the Honda.
He testified that he saw Smothers
reaching down between the passenger’s seat and the passenger’s
door, that he ordered Smothers to put his hands back on the
dashboard, and that he had just come up to the driver’s window
when Hughes threw the car into reverse and sped away.
Marlin saw
the Honda hit a parked police car, then veer away from two other
police cruisers just arriving on the scene.
Other officers
testified that Hughes backed the Honda over a median and across
Martin Luther King Street.
When the police attempted to block
the Honda there against the side of the street, Hughes rammed one
of the cruisers, backed through a fence, then drove down the
sidewalk around the cruisers and out onto northbound Martin
Luther King.
One of the cruisers had followed.
Its officers decided
against a high-speed chase, but managed to keep the Honda in
sight until it turned left from Third Street onto Elm Tree Lane.
In the roadway at that intersection, they found a box of live
handgun shells and an ammunition magazine.
A short time later, a
citizen turned over to the police a black Beretta pistol that he
had just found lying in Elm Tree Lane not far from the Fourth
Street intersection.
pistol.
The shells and the magazine matched the
In the meantime, in the 400 block of Chestnut Street,
metro-police officers had come upon the abandoned black Honda.
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It was registered to Hughes at his mother’s address.
At that
address the police had found and arrested Smothers.
Hughes had
turned himself in a few days later.
This was the Commonwealth’s case.
As noted above,
Smothers was charged with wanton endangerment for having pointed
the pistol at Franklin.
He and Hughes were both charged with
fleeing or evading police.
And Hughes was charged with assault,
wanton endangerment, and with leaving the scene of an accident
all in conjunction with his operation of the Honda.
were tried jointly in March 2000.
The cousins
Following the Commonwealth’s
proof, Smothers moved for a directed verdict on the charge of
fleeing or evading police.
He noted that the statutes
establishing this offense apply to one who was “operating a motor
vehicle,”3 and argued that the evidence clearly established that
Hughes had been the operator.
In denying the motion, the court
agreed with Smothers’s assessment of the evidence, but ruled that
he might still be found guilty of the offense under a complicity
instruction.4
Smothers contends that his mere presence in the
Honda is not sufficient proof of his complicity in the flight and
that the trial court erred, therefore, by denying his motion to
dismiss the charge of fleeing or evading police.
We disagree.
It is by now well established in Kentucky that a trial
court’s denial of a directed-verdict motion will be disturbed on
appeal only if, drawing all fair and reasonable inferences from
the evidence in favor of the Commonwealth, the evidence could not
3
KRS 520.095 and KRS 520.100.
4
KRS 502.020.
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induce a reasonable juror to believe beyond a reasonable doubt
that the defendant is guilty.5
Under the pertinent portions of
KRS 502.020, the complicity statute, Smothers could be found
guilty of Hughes’s fleeing from the police only if he intended to
promote or facilitate that offense and then only if he solicited,
commanded, or engaged in a conspiracy with Hughes to commit the
offense or aided or counseled Hughes in committing the offense.6
Although we agree with Smothers that a passenger’s mere presence
in a vehicle does not establish his complicity in the driver’s
wrongful acts,7 there was more evidence here than Smothers’s
presence in the Honda.
A juror could reasonably have been convinced from the
Commonwealth’s proof that Smothers had been the principal actor
in the harassment of Franklin, in which Hughes had joined, and
that Smothers, at least as much as Hughes, did not want the
police to find them in possession of the black Baretta pistol.
Smothers’s leading role in the confrontations with Franklin, the
cousins’ prior complicity or apparent cooperation, and the fact
that Smothers shared Hughes’s strong motivation to evade the
police, made reasonable an inference that the complicity extended
to the flight.
The trial court did not err by so ruling.
5
Hodge v. Commonwealth, Ky., 17 S.W.3d 824 (2000); Commonwealth v. Benham, Ky.,
816 S.W.2d 186 (1991).
6
KRS 502.020(1)(a) and (b).
7
Cf. Callahan v. Commonwealth, Ky., 508 S.W.2d 583 (1974) (presence at crime scene or
mere association with principal offender does not establish aiding and abetting); Paul v.
Commonwealth, Ky. App., 756 S.W.2d 24 (1988) (presence in back seat of car did not establish
passenger’s involvement with driver’s drug activity).
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Smothers testified in his own defense, and on crossexamination the Commonwealth’s first question was, “You’re a
convicted felon, aren’t you?”
As Smothers’s counsel was
objecting, Smothers responded that a case was pending.
An
ensuing bench conference revealed that Smothers had recently pled
guilty to drug-possession and escape charges, but that sentencing
and final judgment in that case had been continued pending the
outcome of this one.
The Commonwealth had been under the
impression, it explained, that Smothers had been sentenced in the
other case and that the judgment had become final.
volunteered to pursue the matter no further.
It
The trial court
ruled, however, that a duly entered guilty plea was a conviction
for purposes of impeachment and that any witness who had pled
guilty, even before final judgment had been entered on the plea,
was subject to the sort of question the Commonwealth had asked.
Despite this ruling, the Commonwealth let the question drop.
Counsel for Hughes picked it up.
On re-cross-
examination, in what proved to be the last question of the trial,
he asked Smothers if he had “pled guilty to two felonies.”
Smothers, attempting to invoke his fifth-amendment right not to
incriminate himself, refused to say more than that an unrelated
case was pending.
The trial court then read to the jury the
standard admonition that the evidence of Smothers’s prior
conviction was to have no bearing on this case beyond its effect
on the juror’s estimate of Smothers’s credibility.
Smothers
contends that the trial court erred by allowing him to be
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impeached with a question about a guilty plea that was not yet
final.
We agree.
CR 43.07 and KRE 609 both provide for the impeachment
of any witness by evidence that he or she “has been convicted of
a felony.”8
Kentucky is among a minority of jurisdictions that
construes “conviction” narrowly under these rules to mean “final
judgment.”9
Because Smothers’s guilty plea had not yet issued in
a final judgment, the trial court erred by permitting him to be
questioned about it.
We are persuaded in this instance, however, that the
error could have had no bearing on the outcome of Smothers’s
trial and thus was harmless under RCr 9.24.
As noted above,
although Smothers denied any responsibility for fleeing from the
police, there could be no dispute that the fleeing occurred and
virtually no doubt that Smothers was a willing and active
participant.
And though Smothers denied having possessed a gun
either that day or any day, Hughes confirmed Franklin’s version
of the confrontation and testified both that Smothers had thrown
items from the car in the area where the gun and ammunition were
found and that the gun Smothers had possessed was like the one
turned over to the police.
The gun’s existence together with the
8
CR 43.07. KRE 609 authorizes impeachment by evidence that the witness “has been
convicted of a crime . . . but only if the crime was punishable by death or by imprisonment for
one (1) year or more. . . .”
9
Commonwealth v. Duvall, Ky., 548 S.W.2d 832 (1977); Adkins v. Commonwealth, Ky.,
309 S.W.2d 165 (1958); Tabor v. Commonwealth, Ky. App., 948 S.W.2d 569 (1997). See
Annotation, Permissibility of Impeaching Credibility of Witness by Showing Former Conviction,
as Affected by Pendency of Appeal from Conviction or Motion for New Trial, 16 ALR 3d 726
(1967); Annotation, Permissibility of Impeaching Credibility of Witness by Showing Verdict of
Guilty Without Judgment of Sentence Thereon, 28 ALR 4th 647 (1984).
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testimony of Franklin and Hughes is overwhelming evidence belying
Smothers’s vague and general denial.
Finally, because Smothers
received the minimum allowable total sentence, there is no
probability that the improper impeachment unfairly prejudiced his
sentencing.
Accordingly, we affirm the March 21, 2000, judgment
of the Fayette Circuit Court.
GUIDUGLI, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
SCHRODER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I would affirm the conviction for wanton endangerment but
reverse the fleeing or evading a police officer as the defendant
was not the operator of the vehicle.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Gene Lewter
Lexington, Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Brian T. Judy
Frankfort, Kentucky
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