LANDAN MABREY v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002653-MR
LANDAN MABREY
APPELLANT
ON REMAND FROM KENTUCKY SUPREME COURT
2001-SC-0298-DG
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 99-CR-00039
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and DYCHE, Judges.
COMBS, JUDGE:
This case is before us on remand from the Kentucky
Supreme Court with directions to reconsider our opinion in this
matter rendered March 16, 2001, in light of Manns v.
Commonwealth, Ky., 80 S.W.3d 439 (2002), which became final on
August 22, 2002, and Canter v. Commonwealth, Ky., 843 S.W.2d 330
(1992).
After reviewing Mabrey’s appeal with these cases in
mind, we reverse and remand.
On January 29, 1999, Mabrey was indicted for two counts
of first-degree trafficking in a controlled substance. KRS1
218A.1412.
The charges were based on the allegation that on
December 3 and December 4, 1998, Mabrey sold a quantity of
cocaine to Patricia Reilly, a witness for the prosecution.
Mabrey pleaded not guilty, and on August 31 and
September 1, 1999, he was tried before a jury on both charges.
He was convicted of one count of first-degree trafficking in
cocaine and received a sentence of eight-years' imprisonment.
Final Judgment was entered on October 21, 1999.
Mabrey then
appealed to this court, and we affirmed in a decision rendered
March 16, 2001.
The Supreme Court granted discretionary review,
and on September 18, 2002, it rendered an opinion and order
remanding the case to this Court for reconsideration in light of
Manns, supra, and Canter, supra.
Commonwealth's Exhibit 40 discloses that in November
1996, Mabrey had been indicted for two counts of first-degree
trafficking in a controlled substance (KRS 218A.1412) based upon
the allegation that he had sold cocaine in August and September
1996.2
The exhibit also contains the Kenton Circuit Court Final
Judgment and Sentence of Imprisonment dated March 14, 1997,
reflecting that Mabrey had pled guilty to one count of first-
1
Kentucky Revised Statutes.
2
The indictment does not specify whether the charges are for
first-offense trafficking, a Class C felony, or for second or
subsequent offense trafficking, a Class B felony. The distinction
is relevant under KRS 635.020 in determining whether a juvenile
case may be transferred to circuit court or whether it must
remain in district court.
-2-
degree trafficking in a controlled substance, first offense, a
Class C felony, and to one count of possession of cocaine.
The
final judgment discloses that Mabrey was sentenced to a term of
five years on the trafficking charge and to one year on the
possession charge -- to run concurrently.
Additionally, the
judgment states: (1) "Because of the defendant's age, he is a
youthful offender and is being sentenced pursuant to the
provisions of KRS 640.030 and KRS 640 in general"; and (2) "If
the Defendant attains the age of eighteen (18) years prior to the
expiration of his sentence, and has not been probated or released
on parole, he shall be returned to this sentencing Court for
further proceedings all consistent with and pursuant to KRS
640.030."
On July 16, 1997, the Kenton Circuit Court entered an
Agreed Order, which stated in relevant part as follows:
This court, having heard arguments of counsel
on the above matter, hereby vacates its Final
Judgment and Sentence of Imprisonment entered
March 14, 1997, and disposes of this matter
by committing Landan Mabrey to the department
of Juvenile Justice, Commonwealth of
Kentucky, as a public offender pursuant to
KRS 635.060. This case properly falls under
the authority of Canter v. Commonwealth, Ky.,
843 S.W.2d 330 (1992).
As such, Landon Mabrey is hereby committed to
the Department of Juvenile Justice as a
public offender for an indeterminate period
of time, up to the age of eighteen (18)
years.
During his trial in 1999, which is the subject of this
appeal, Mabrey testified on his own behalf. On cross-examination,
the prosecutor asked him whether he had ever been convicted of a
felony.
Presumably after having discussed the matter with
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defense counsel, Mabrey responded that he had.
The trial court
then admonished the jury that the prior felony conviction was to
be considered only as it reflected upon Mabrey's credibility.
Near the conclusion of the cross-examination of Mabrey, the
prosecutor referred to him as a convicted felon — apparently as a
trial tactic to bolster the image of Reilly, a self-admitted
prostitute and crack addict, in contrast with and at the expense
of Mabrey.
In his closing argument, the prosecutor once again
alluded to Mabrey's status as a "convicted felon."
Effective July 15, 1997, KRS 610.320(4), which
addresses the admission of juvenile records as evidence in
subsequent proceedings, was amended to permit juvenile court
records to be offered in a criminal trial to include their use
for impeachment purposes.
That statute was amended to include
their use as follows:
Subject to the Kentucky Rules of Evidence,
juvenile court records of adjudications of
guilt of a child for an offense which would
be a felony if committed by an adult shall be
admissible in court at any time the child is
tried as an adult, or after the child becomes
an adult, at any subsequent criminal trial
relating to that same person. Juvenile court
records made available pursuant to this
section may be used for impeachment purposes
during a criminal trial, and may be used
during the sentencing phase of a criminal
trial. However, the fact that a juvenile has
been adjudicated delinquent of an offense
which would be a felony if the child had been
an adult shall not be used in finding the
child to be a persistent felony offender
based upon that adjudication.
The 1997 amendments to the juvenile code added
identical language to KRS 532.055(2)(a) (felony sentencing
-4-
hearings) and KRS 532.025(1) (capital offense sentencing
hearings).
In our original decision in this case, we affirmed the
Commonwealth’s use of Mabrey’s juvenile record for impeachment
purposes.
Since that decision was rendered, Manns v.
Commonwealth, supra, declared the 1997 amendments to be
unconstitutional to the extent that they permitted juvenile
records to be used for impeachment purposes in a subsequent
trial.3
The Supreme Court held that the impeachment aspect of
the 1997 amendments violated the doctrine of separation of
powers.
It deferred to the rule set forth at KRE4 609(a) with
respect to impeachment by prior criminal adjudications, holding
that it applies to the use of prior juvenile convictions for
purposes of impeaching the credibility of witnesses.
KRE 609(a)
provides in pertinent part:
For the purpose of reflecting upon the
credibility of a witness, evidence that the
witness has been convicted of a crime shall
be admitted if elicited from the witness or
established by public record if denied by the
witness, but only if the crime was punishable
by death or imprisonment for one (1) year or
more under the law under which the witness
was convicted. . . . (Emphasis added.)
Citing Coleman v. Staples, Ky., 446 S.W.2d 557, 560
(1969); Cotton v. United States, 355 F.2d 480, 481 (10th
Cir.1966)); and KRS 635.040, the Manns Court clarified that a
juvenile adjudication does not equate to a criminal conviction
3
Mabrey did not raise the constitutionality of the 1997
amendments in his original appeal to this Court.
4
Kentucky Rules of Evidence.
-5-
but that it is a determination or an adjudication of a status.
Manns at 445.
Mabrey’s earlier conviction had been adjudicated
in circuit court.
However, when harmonized with other provisions
of the juvenile code and Canter v. Commonwealth, supra, his
conviction of first-degree trafficking in a controlled substance,
first offense, normally a Class C felony, falls within the
special purview of KRS 635.040.
KRS 635.040 provides as follows:
No adjudication by a juvenile session of
District Court shall be deemed a conviction,
nor shall such adjudication operate to impose
any of the civil disabilities ordinarily
resulting from a criminal conviction, nor
shall any child be found guilty or be deemed
a criminal by reason of such adjudication.
The record is unclear as to what circumstances caused
the transfer of the 1996 charges to circuit court under KRS
635.020 and KRS 640.010.
But the fact remains that Mabrey was
ultimately convicted of a Class C felony.
KRS 635.020(2)
provides as follows:
If a child charged with a capital offense,
Class A felony, or Class B felony, had
attained age fourteen (14) at the time of the
alleged commission of the offense, the court
shall, upon motion of the county attorney
made prior to adjudication, and after the
county attorney has consulted with the
Commonwealth’s attorney, that the child be
proceeded against as a youthful offender,
proceed in accordance with the provisions of
KRS 640.010.5
If Mabrey had originally been charged with the same
offense of which he was ultimately convicted (a Class C felony),
5
KRS 640.010 sets forth the hearing and proof requirements
applicable to the determination of whether to transfer a juvenile
case to circuit court and to try the juvenile as a youthful
offender.
-6-
that lower level of felony would have rendered him exempt from
the status of youthful offender.
Disposition of his case would
have occurred in juvenile court rather than in circuit court.
See Canter v. Commonwealth, Ky., 843 S.W.2d 330, 331 (1992).
Hence, the provisions of rule of KRS 635.040 are activated.
Therefore, Mabrey’s 1996 adjudication cannot be considered a
criminal conviction.
Id.
In summary, pursuant to Manns v. Commonwealth, Canter
v. Commonwealth, and KRS 635.040, as Mabrey was not a convicted
felon at the time of his trial in the present case, the court
erred in permitting the impeachment of his credibility on that
basis.
As noted in our earlier decision, Mabrey did not properly
preserve this issue for appeal.
However, we are reviewing this
matter pursuant to RCr6 10.26.
Witness credibility was crucial in this case.
The case
was largely one of Mabrey’s word against the word of the alleged
drug-buyer.
We are persuaded that a manifest injustice has
resulted from the error and that a substantial possibility exists
that the result of the trial would have been different but for
the error.
(1986).
Jackson v. Commonwealth, Ky. App., 717 S.W.2d 511
We accordingly reverse and remand for a new trial
excluding the impermissible impeachment evidence.
In his original appeal, Mabrey also contended that the
application of the 1997 amendments to his trial was barred by ex
post facto principles.
6
Consistent with our decision in our
Kentucky Rules of Criminal Procedure.
-7-
original opinion, the Supreme Court in Manns rejected this
argument.
Finally, in his original appeal, Mabrey argued that it
was improper to use his 1996 conviction in the sentencing phase
of the case.
Again, the Supreme Court considered this issue in
Manns and held that it is permissible to use prior juvenile
records in the sentencing phase of the case.
For the foregoing reasons, the judgment of conviction
of the Kenton Circuit Court is reversed and remanded for a new
trial.
BUCKINGHAM, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Vickie L. Wise
Assistant Attorney General
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