KELVIN W. REED v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002373-MR
KELVIN W. REED
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
INDICTMENT NOS. 99-CR-002901, 99-CR-002972 & 00-CR-001896
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS AND DYCHE, JUDGES; POTTER, SPECIAL JUDGE.1
DYCHE, JUDGE:
Following a jury trial, Kelvin William Reed was
convicted of receiving stolen property valued at over $300,
unauthorized use of a motor vehicle, theft by unlawful taking of
property valued at under $300, second-degree criminal trespass,
giving a police officer a false name, and being a second-degree
felony offender.
This is a direct appeal from the final judgment
sentencing Reed to concurrent sentences totaling four years,
enhanced to eight years by the second-degree persistent felony
offender conviction.
1
In this appeal Reed claims that the trial
Senior Status Judge John Potter sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Constitution.
court erred by improperly consolidating two indictments, by
refusing to grant a motion for a mistrial, by admitting hearsay
evidence, by bifurcating the sentencing on misdemeanor offenses,
by denying a request to poll the jury, and by improperly
instructing the jury during the PFO-penalty phase.
Reed further
claims that the evidence was insufficient for the jury to find
guilt on two of the charges.
We affirm in part, reverse in part
and remand.
On September 9, 1999, Reed was discovered in the rear
stockroom of Shaheen's Department Store, St. Matthews, Kentucky,
by the owner and his wife.
store.
He was ordered out and exited the
When the police responded they located Reed in a Cadillac
outside the store.
The temporary tag in the back window appeared
to be forged and the vehicle had been reported stolen.
Reed had
no identification and gave the officer the name Kelvin Williams.
Reed was indicted on November 30, 1999 (No. 99-CR-2901), for
receiving stolen property over $300, second-degree criminal
trespass, giving a peace officer a false name, criminal
possession of a forged instrument, and PFO II. This case was
assigned to Division One of the Jefferson Circuit Court and
scheduled for jury trial on July 11, 2000.
On September 30, 1999, an employee of Melton Food Mart
Cheap Smokes (Food Mart) observed Reed parking a Red Honda Civic
before entering the store and placing a number of cartons of
cigarettes under his shirt and exiting the store.
When
confronted by the employee, he dropped the cigarettes and ran.
Police responded to the shoplifting call and apprehended Reed.
Police discovered the license plate had been removed from the
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Honda Civic and it had been reported stolen.
Reed gave the
investigating officer the name Kelvin Williams.
An indictment
was returned on December 14, 1999 (No. 99-CR-2972), charging Reed
with two counts of receiving stolen property over $300, theft by
unlawful taking under $300, receiving stolen property under $300,
possession of marijuana, first-degree fleeing or evading police,
operating a vehicle on a suspended license, and giving a peace
officer a false name or address.
This indictment also included
offenses which occurred on October 9, 1999.
The case was
assigned to Division Twelve of the Jefferson Circuit Court and
was scheduled for jury trial on September 5, 2000.
On July 11, 2000, the morning of trial on Indictment
No. 99-CR-2901, the Commonwealth moved to consolidate the
indictment from Division Twelve with the indictment from Division
One.
The trial court denied this motion, and the parties
proceeded to trial on Indictment No. 99-CR-2901.
During voir
dire, the trial court inadvertently read the PFO charge to the
jury.
The mistake was brought to the court's attention the
second morning of trial.
The court agreed to view the videotape
during the lunch break but proceeded with the trial.
The trial
court viewed the tape, confirmed the error, and the defense moved
for a mistrial.
The Commonwealth stated that, if a mistrial was
granted, it would renew its motion to consolidate the
indictments.
A mistrial was granted and a new trial scheduled
for January 30, 2001.
On August 17, 2000, the Commonwealth filed a motion to
consolidate, which was granted.
On the morning of trial the
Commonwealth indicated it would not be going forward on four
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counts of Indictment No. 99-CR-2972, as they had not intended
that indictment be joined.
The trial court granted a defense
motion to dismiss those charges with prejudice.
The trial was held on July 5 and 6, 2001.
Reed was
found guilty of receiving stolen property valued at over $300 for
the Honda Civic, unauthorized use of a motor vehicle for the
Cadillac, theft by unlawful taking of property valued at under
$300 for the cigarettes, and second-degree criminal trespass and
giving a false name to a peace officer for the incident at
Shaheen's.
The combined PFO/penalty phase was held on July 9,
2001.
Reed testified and admitted that he committed the
shoplifting and that he gave the officer a false name.
fixed Reed's punishment as follows:
The jury
Receiving stolen property
valued at over $300 — 4 years; unauthorized use of a motor
vehicle — 12 months and $500; theft by unlawful taking of
property valued at under $300 — 6 months and $250; second-degree
criminal trespass — 90 days; and giving a peace officer a false
name — 90 days and $250.
They also found him guilty of being a
second-degree persistent felony offender and enhanced the 4-year
sentence to 8 years.
Reed was finally sentenced on August 30,
2001, to the enhanced sentence of 8 years.
Reed first argues that it was reversible error for the
trial court to consolidate the two indictments.
In the
alternative, he argues that double jeopardy attached after the
first trial.
Under RCr 6.18, two or more offenses may be charged in
the same indictment "if the offenses are of the same or similar
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character or are based on the same acts or transactions connected
together or constituting parts of a common scheme or plan."
Offenses closely related in character, circumstances, and time
need not be severed.
895 (1981).
Cardine v. Commonwealth, Ky., 623 S.W.2d
The trial judge has broad discretion with respect to
joinder of charges and will not be overturned in the absence of a
showing of prejudice and a clear abuse of discretion.
Commonwealth, Ky., 858 S.W.2d 185 (1993).
prejudice or abuse of discretion.
Rearick v.
Reed fails to show
The trial court summarily
denied the Commonwealth's motion to consolidate the indictments
on a motion brought on the morning of the first trial.
On
retrial the court granted the motion to consolidate and the
defense filed a motion to sever.
At the hearing on the motion to
sever, the court indicated that the original motion was denied
because of its untimeliness.
The trial court then denied the
motion to sever specifically finding that the offenses were
similar, closely related in character, circumstances, and time.
The acts were committed within weeks of each other, both involved
reported stolen vehicles with the identity disguised, both
involved Reed giving the officer the same false name.
The trial
court's denial of the motion to sever was therefore not an abuse
of discretion.
Reed further argues that he was prejudiced by the
court's denial of severance in that he was in essence being
punished for demanding a mistrial.
However, the Commonwealth was
well within its rights to request consolidation.
We fail to see
how the fact that it informed the court that it intended to so
proceed prejudiced Reed, especially given the fact that several
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charges were dismissed with prejudice as a result of the joinder.
Reed also claims he was prejudiced in that he would have
testified concerning the September 30th incident had it been
tried separately.
Counsel stated that Reed "may have wanted to
testify" to one of the incidents had they been tried separately.
The trial court then offered that Reed could testify only as to
the Food Mart charges and the Commonwealth agreed to limit crossexamination to those charges.
Reed declined that offer.
cannot now be heard to say that he would have testified.
He
Finding
no prejudice or abuse of discretion we affirm on this issue.
Reed argues in the alternative that Indictment No. 99CR-2901 should be dismissed on double jeopardy principles.
Citing Oregon v. Kennedy, 456 U.S. 667, 679, (1982), and Tinsley
v. Jackson, Ky., 771 S.W.2d 331 (1989), Reed argues that the
mistrial was precipitated by the unfair action of the trial
court. The record reflects that the reading of the PFO charge
during voir dire in the first trial was inadvertent.
When this
mistake was brought to the trial court's attention, the court
appropriately found that manifest necessity required a mistrial.
Reed has failed to describe any conduct that rises to the level
of that required by law to show that the trial court's actions
were fundamentally unfair, in bad faith, or overreaching on the
part of the court.
We affirm on this issue.
Reed's next allegation of error is that the trial court
failed to grant a mistrial based on improper comments made by
Sergeant Walker of the Jefferson County Police Department.
first comment of which Reed complains was in response to
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The
prosecution questioning as to what Sergeant Walker did after
arriving at the Food Mart.
Prosecutor: When you arrived at that
location was there a suspect in custody?
Sgt. Walker:
Prosecutor:
there?
Yes.
What did you do when you got
Sgt. Walker: I advised the suspect who I
was, what my capacity was on the department
as far as being a detective, asked him his
name, admonished him if he had given me a
false name, address or birthday, or any of
that personal information, that he could be
charged with that later. Mirandized him, he
invoked, so there was no questioning.
The test concerning indirect comments is "whether the
comment is reasonably certain to direct the jury's attention to
the defendant's exercise of his right to remain silent."
v. Commonwealth, Ky., 969 S.W.2d 706 (1998).
Sholler
In Gall v.
Commonwealth, Ky., 607 S.W.2d 97 (1980), overruled on other
grounds by Payne v. Commonwealth, Ky., 623 S.W.2d 867, 870
(1981),
the prosecutor elicited testimony from a police officer
that he had tried to talk to the defendant, but "he wouldn't
talk."
The court held that this comment was not likely to draw
the jury's attention to the defendant's silence.
While Sergeant
Walker's comments were inappropriate, they cannot be said to be
any more likely to direct the jury's attention to Reed's right to
remain silent.
Not every isolated instance of reference to post-
arrest silence is reversible error.
Unless post-arrest silence
is deliberately used to impeach or there is reason to believe a
defendant has been prejudiced by reference to his exercise of his
constitutional right, it is not reversible error.
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Wallen v.
Commonwealth, Ky., 657 S.W.2d 232 (1983).
The unelicited
comments of this police officer, while inappropriate, were not
used to deliberately impeach Reed.
The prosecutor drew no
further attention to them or made any other comment on Reed's
invoking.
The second comment by Sergeant Walker occurred during
cross-examination.
While being questioned Sergeant Walker stated
that defense counsel "was trying to confuse her and the jury."
The court denied a defense motion for mistrial, reprimanded the
witness at the bench and admonished the jury to disregard the
comment.
While this unelicited testimony was improper, Reed
fails to show how he was prejudiced.
It is ordinarily presumed
that the jury is controlled by an admonition.
Commonwealth, Ky., 256 S.W.2d 509 (1953).
Carpenter v.
Reed fails to overcome
the presumption that the admonition cured any prejudicial effect
of the statement.
A mistrial is appropriate only where the
record reveals a manifest necessity for such an action.
v. Commonwealth, Ky., 31 S.W.3d 897 (2000).
Gosser
A trial court has
discretion to determine when to grant a mistrial and that
decision will not be disturbed absent a showing of abuse of
discretion.
(1993).
Clay v. Commonwealth, Ky. App., 867 S.W.2d 200
Finding no prejudice to Reed in the statements made by
Sergeant Walker, we affirm on this issue.
Reed next argues that the trial court committed
reversible error by inferring that the defense would present
evidence.
When dismissing the jury for a recess at the close of
the Commonwealth's case, the court admonished the jury not to
discuss the case or form any opinion "because although you've
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heard all the Commonwealth's proof, you haven't heard any
evidence on the defendant's side."
Reed argues that this
improperly shifted the burden of proof and inferred that Reed
should present evidence.
When brought to the court's attention
during the recess, the court denied the motion for mistrial but
stated that when the jury returned he would ask defense counsel
if they intended to put on any proof and stated that the written
instructions to the jury would cure any prejudice.
In Kirk v.
Commonwealth, Ky., 6 S.W.3d 823 (1999), a comment by the court
that once the Commonwealth produced proof the jury would "be
looking for any evidence that's been put on by the other side to
rebut that" was found to be cured by written instructions given
to the jury at the conclusion of the case accurately stating the
presumption of innocence and placing the burden on the
Commonwealth.
While the determination in Kirk was partly based
on the fact that the defense failed to request a mistrial or
admonition, we believe it applies in this case.
Defense could
have requested an admonition but instead agreed with the trial
court as to how to proceed when the jury returned.
Further, the
statement by the court in the instant case did not rise to near
the level of burden shifting as that in Kirk.
Therefore, we
believe the written instruction was sufficient to cure any
prejudice that may have occurred.
Under the previous analysis of
when failure to grant a mistrial is reversible error, we do not
believe that the court abused its discretion in denying the
mistrial.
Thus, we affirm on this issue.
Reed's next assignment of error is that the trial court
admitted hearsay evidence that the Honda Civic was stolen.
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The
car belonged to Clinical Pathology Associates.
The operations
manager for the corporation was called to testify that the Honda
had been stolen while being driven by one of their couriers.
Reed contends that the courier was the only person who could
testify to those facts and that the manager's testimony was
hearsay.
The trial court allowed the testimony under the
business records exception to the hearsay rule.
KRE 803 (6).
The manager testified that her duties included supervision of
drivers and maintenance of the company vehicles.
She testified
that the vehicle was reported stolen, that she was the person
called when the vehicle was recovered, and that she went to
identify the vehicle.
the car was stolen.
Reed claims she also testified as to how
However, a review of her testimony reveals
that the only detail about how the car was stolen was that it was
stolen while being driven by the courier and this testimony was
elicited by defense counsel, not by the prosecution.
The
operations manager testified that she was in charge of
maintenance for the vehicles and supervisor of the drivers.
Under these facts we believe the trial court correctly allowed
the manager to testify under the business records exception to
the hearsay rule.
Therefore, we affirm on this issue.
Reed's next assignment of error is that the
Commonwealth failed to offer proof regarding the value of the
Honda Civic.
Reed states that this issue was preserved for
appeal based on his motion for a directed verdict on the charge
of receiving stolen property valued at over $300.
The question
then is one of whether Reed was entitled to a directed verdict on
the charge.
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The test of a directed verdict is when, viewing the
evidence in the light most favorable to the Commonwealth, it
would be unreasonable for a jury to find guilt.
If the evidence
is sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that a defendant is guilty, a directed verdict
should not be given.
Commonwealth v. Benham, Ky., 816 S.W.2d 186
(1991).
While the Commonwealth failed to present evidence
directly addressing the value of the 1999 Honda Civic, pictures
of the vehicle were introduced into evidence and the operations
manager testified that it was a 1999 model.
Although damaged,
the car was obviously in working condition, as the store employee
testified that Reed drove the car to the store.
Based on this
evidence, it would not be unreasonable for a juror to conclude
that a working 1999 Honda Civic had a value of at least $300.00.
Therefore, we affirm on this issue.
Reed next contends that the Commonwealth failed to
offer sufficient proof on the charge of giving a peace officer a
false name or address because Officer Ford failed to first warn
Reed that this was a criminal offense.
This issue was properly
preserved for appellate review through Reed's motion for directed
verdict.
KRS 523.110(1) provides that:
A person is guilty of giving a peace officer
a false name or address when he gives a false
name or address to a peace officer who has
asked for the same in the lawful discharge of
his official duties with the intent to
mislead the officer as to his identity. The
provisions of this section shall not apply
unless the peace officer has first warned the
person whose identification he is seeking
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that giving a false name or address is a
criminal offense.
When asked whether he had given Reed the warning
Officer Ford replied,
"At that point in time I don't think I did.
I may have at sometime during the course,
when we thought he was giving us a false
name, said that, you know, if you give us a
false name, its against the law . . . ."
At the hearing on the motion for directed verdict the
Commonwealth stated that it believed Officer Ford testified he
gave the warning.
The court agreed and denied the motion based
on a belief that Officer Ford testified that he gave the warning.
It is clear from the record that Officer Ford testified that he
did not give the warning at first and only that he "may have"
given the warning later.
Even viewing this evidence in a light
most favorable to the Commonwealth, the equivocal statement, "I
may have warned him later" was not sufficient to establish the
warning was given.
We find that the Commonwealth failed to meet
its burden of proving that the mandatory warning was given.
Thus, the trial court erred in denying Reed's motion for directed
verdict.
As such, we reverse Reed's conviction for giving a
peace officer a false name with directions that it be dismissed
on remand.
Reed next contends that the trial court erred by
bifurcating the trial of the misdemeanor offense.
However, in
his reply brief he correctly notes that this is no longer an
issue based on the recent Supreme Court decision in Commonwealth
v. Philpott, Ky., 75 S.W.3d 209 (2002).
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Reed next contends that the trial court erred in
denying his request to poll the jury.
The jury returned its
verdict finding Reed guilty on Friday, July 6, 2001.
phase was continued to Monday, July 9, 2001.
Reed requested that the jurors be polled.
The penalty
On Monday morning
The trial court denied
the request, holding that the guilt-innocence phase was
concluded, and therefore the request was made too late.
RCr 9.88 provides for the following procedure:
When the verdict is announced, either party
may require the jury to be polled, which is
done by the clerk's or court's asking each
juror if it is his or her verdict. If upon
the poll, there is no unanimous concurrence,
the verdict cannot be received.
The right of a defendant to have a poll of the jury is
unquestionable.
See Powell v. Commonwealth, Ky., 346 S.W.2d 731
(1961), and Temple v. Commonwealth, 77 Ky. (14 Bush) 769 (1879).
However, this is a right which may be waived by failure to ask
for it.
Powell, supra; and Asher v. Commonwealth, 221 Ky. 700,
299 S.W. 568 (1927).
Although Reed and his counsel were present
when the jury announced its verdict, they did not request that
the jury be polled, thereby waiving the right.
There was no
error in the court denying the belated request, and so we affirm
on this issue.
Reed's final allegation of error is that the trial
court improperly instructed the jury.
He first contends that the
court improperly took judicial notice that three of Reed's prior
convictions were felonies.
The Commonwealth produced proper
evidence of Reed's prior convictions for two counts of receiving
stolen property over $300 and one count of theft by unlawful
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taking over $300.
The trial court on request of the Commonwealth
took judicial notice that these counts were felonies and so
instructed the jury.
The courts of Kentucky are charged with
judicial notice of the laws of the Commonwealth.
Commonwealth, 272 Ky. 533, 114 S.W.2d 757 (1938).
Allen v.
Therefore, we
find no error and affirm on this issue.
The second instruction Reed assigns as error is that
the judge improperly admonished the jury that it would only be
recommending a sentence.
We decline to review this unpreserved
error, and do not believe that the instruction amounted to
"manifest injustice" to warrant palpable error review.
RCr 9.22;
RCr 10.26.
The final instruction Reed assigns as error is that the
trial court informed the jurors that the sentences would run
concurrently.
Reed alleges that this amounted to telling the
jury that it could impose any penalty it wanted without
consequence.
Reed received multiple sentences for both definite
and an indeterminate term.
served concurrently.
KRS 532.110(a) mandates that they be
While it is true that the jury imposed the
maximum jail sentence for three of the misdemeanors and the
maximum fine for two, it did not impose the maximum sentence on
one charge and did not impose the maximum fine on two.
Contrary
to Reed's argument, we believe this indicates that the jury did
not see its job as meaningless or fail to take its role
seriously.
Finding no error, we affirm on this issue.
Because Reed’s conviction for giving a peace officer a
false name was based on insufficient evidence, we must reverse in
that respect.
The conviction of the Jefferson Circuit Court is
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affirmed in all other respects, but the case is remanded for
further proceedings consistent with this opinion.
POTTER, SPECIAL JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS.
COMBS, JUDGE, DISSENTING.
Sergent Walker gave Reed a warning
that giving a false name or falsifying other personal information
could result in later charges against him.
He was properly on
notice in satisfaction of KRS 523.110(1) - despite the omission
of Officer Ford.
I would affirm on this point.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Daniel T. Goyette
Jefferson District Public
Defender
Albert B. Chandler III
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
Elizabeth B. McMahon
Assistant District Defender
Louisville, Kentucky
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