DANIEL JOHNSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
December 3, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002455-MR
DANIEL JOHNSON
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 02-CR-00055
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TACKETT, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Daniel Johnson has appealed from the final
judgment of the Kenton Circuit Court entered on October 17,
2002, which pursuant to a jury verdict, convicted him of
manslaughter in the second degree,1 and assault in the fourth
degree.2
Having concluded that (1) Johnson’s objection to the
jury instructions was not properly preserved; (2) his proffered
evidence was not preserved by an avowal; (3) the trial court did
1
Kentucky Revised Statutes (KRS) 507.040.
2
KRS 508.030.
not err by denying Johnson’s motion for a mistrial following
witnesses’ characterization of him as a “biker”; (4) the trial
court did not err by denying Johnson’s motion for a directed
verdict of acquittal; and (5) the trial court’s allowing crossexamination of Johnson regarding the Hell’s Angels bumper
sticker on his motorcycle during the sentencing phase of the
trial was harmless error, we affirm.
The Commonwealth presented evidence that on November
1, 2001, Johnson and his son, Brandon, went to the First and
Last Chance Bar in Kenton County, Kentucky, near the Grant
County line.3
At around 9:00 p.m. that evening, Johnson and
Shawn Sandlin, a female bar patron, were having a brief
conversation about Johnson’s tattoos when a confrontation
occurred, resulting in Johnson and Sandlin being physically
separated by other bar patrons.
During the confrontation,
Johnson and Sandlin bumped into Greg Smith who was playing pool
behind them.
As Smith turned to ask Johnson and Sandlin not to
interfere with his pool game, Johnson struck Smith twice in the
face, knocking Smith to the floor.
At this point, Anita Kinman,
who was a co-owner of the bar and a bartender, went to the
3
A brief review of the layout of the First and Last Chance bar is necessary
to understand the facts of this case. The front door of the building opens
to a pool table area where two pool tables are located to the right side of
the doorway. To the left side of the doorway is a partition separating the
pool table area from the dance floor which encases a karaoke stage and
several tables and chairs. As you proceed into the building along the
walkway between the pool tables and the partition, the bar is located in the
back on the right side.
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karaoke stage to get her husband, co-owner Rick Kinman, to come
and stop the fight.4
Rick Kinman placed Johnson in a “sleeper
hold”5 in an attempt to remove Johnson from the building.
Kinman
told Johnson that he would release him if Johnson would agree to
leave the building.
on Johnson.
Johnson agreed and Kinman released his hold
At that time, someone from behind yelled a
derogatory comment at Johnson and Johnson turned around and
punched the person.6
A group of people then surrounded Johnson
and forced him outside the building.
Brandon, Johnson’s son,
attempted to start another fight and was subdued by Kinman and
also taken outside.
Mike Lovelace was standing inside the building next to
the bar with Jason Hicks.
As Kinman re-entered the building and
began walking towards Lovelace and Hicks, Johnson came back
inside the doorway and began firing random shots from a .25
caliber semiautomatic pistol.
Johnson first fired a bullet that
hit the floor and then another one into the ceiling.
Then
Johnson fired at least two more shots, one of these two shots
hit Lovelace in the chest.
Lovelace died from his wounds two
days later.
4
Anita Kinman also called 911 to summon the police to the bar.
5
A “sleeper hold” is a fighting maneuver where a person’s neck is placed in
the grip of another person’s arm and pressure is placed on the person’s
carotid artery rather than the throat.
6
The identity of the person Johnson struck is unknown.
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After firing the shots, Johnson was knocked down and
pinned to the floor.
Hicks pried the gun out of Johnson’s hand
and laid it on the bar.
Johnson was led outside, but returned
to the doorway wielding a knife.
As Hicks walked towards
Johnson in an attempt to prevent Johnson from coming back inside
the building, Johnson cut Hicks across the right side of his
chest with the knife.
Johnson then walked to the bar, waived
the knife, and demanded that Kinman serve him a drink.
Kinman,
who by then had retrieved his own handgun, told Johnson that the
police had been called and that Johnson would wait in the bar
until the police arrived.
On January 25, 2002, Johnson was indicted by a Kenton
County grand jury for one count of murder7 for the death of
Lovelace, one count of assault in the second degree8 for the
stabbing of Hicks, and a second count of assault in the second
degree for the stabbing of Doug Hartman.9
An eight-day jury
trial was held in the Kenton Circuit Court, beginning on August
27, 2002, and ending on September 10, 2002.
Johnson was
convicted of the lesser-included offenses of manslaughter in the
second degree and assault in the fourth degree.
Johnson was
sentenced by a final judgment entered on October 17, 2002, to
7
KRS 507.020.
8
KRS 508.020.
9
Because Johnson was acquitted by the jury on this charge, the facts leading
to the stabbing of Hartman are not relevant to this Opinion.
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ten years in prison for the conviction of manslaughter in the
second degree and one year in jail for the misdemeanor
conviction of assault in the fourth degree.
Pursuant to
statute, the sentences were run concurrently for a total prison
sentence of ten years.
This appeal followed.
JURY INSTRUCTIONS
The jury was instructed as to murder,10 manslaughter in
the second degree,11 and reckless homicide,12 including whether
Johnson acted in self-protection13 or in the protection of
10
KRS 507.020(1)(b) provides in part as follows:
(1)
A person is guilty of murder when:
. . .
(b)
11
KRS 507.040(1) provides in part as follows:
(1)
12
A person is guilty of manslaughter in the second
degree when he wantonly causes the death of another
person. . . .
KRS 507.050(1) provides:
(1)
13
[U]nder circumstances manifesting
extreme indifference to human life, he wantonly
engages in conduct which creates a grave risk
of death to another person and thereby causes
the death of another person.
A person is guilty of reckless homicide when, with
recklessness[,] he causes the death of another
person.
KRS 503.050(1)-(2) provides:
(1)
The use of physical force by a defendant upon another
person is justifiable when the defendant believes
that such force is necessary to protect himself
against the use or imminent use of unlawful physical
force by the other person.
(2)
The use of deadly physical force by a defendant upon
another person is justifiable under subsection (1)
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another person.14
Whether Johnson was reasonable in his belief
that he needed to act in self-protection or in the protection of
another is viewed under a subjective test.15
If Johnson were
determined by the jury to have been reasonable16 in his belief
only when the defendant believes that such force is
necessary to protect himself against death, serious
physical injury, kidnapping, or sexual intercourse
compelled by force or threat.
14
KRS 503.070 provides:
(1)
The use of physical force by a defendant upon another person is
justifiable when:
(a)
(b)
(2)
The defendant believes that such force is necessary to
protect a third person against the use or imminent use of
unlawful physical force by the other person; and
Under the circumstances as the defendant believes them to
be, the person whom he seeks to protect would himself have
been justified under KRS 503.050 and 503.060 in using such
protection.
The use of deadly physical force by a defendant upon another
person is justifiable when:
(a)
The defendant believes that such force is necessary to
protect a third person against imminent death, serious
physical injury, kidnapping or sexual intercourse compelled
by force or threat; and
(b)
Under the circumstances as they actually exist, the person
whom he seeks to protect would himself have been justified
under KRS 503.050 and KRS 503.060 in using such protection.
15
Elliott v. Commonwealth, Ky., 976 S.W.2d 416, 419 (1998).
16
KRS 503.120(1) provides:
(1)
When the defendant believes that the use of force
upon or toward the person of another is necessary for
any of the purposes for which such belief would
establish a justification under KRS 503.050 to
503.110 but the defendant is wanton or reckless in
believing the use of any force, or the degree of
force used, to be necessary or in acquiring or
failing to acquire any knowledge or belief which is
material to the justifiability of his use of force,
the justification afforded by those sections is
unavailable in a prosecution for an offense for which
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that deadly force was necessary for self-protection or the
protection of another, then it would have acquitted him of
killing Lovelace,17 unless it found Lovelace to be an innocent
bystander.18
If Johnson were found to be unreasonable in his
belief that deadly force was necessary for self-protection or
the protection of another, then the jury would find him guilty
of manslaughter in the second degree if he acted wantonly,19
wantonness or recklessness, as the case may be,
suffices to establish culpability.
See also Elliott, 976 S.W.2d at 420.
17
Commonwealth v. Hager, Ky., 41 S.W.3d 828, 841 (2001) provides:
[A] mistaken belief in the need to act in selfprotection does not affect the privilege to act in
self-protection unless the mistaken belief is so
unreasonably held as to rise to the level of
wantonness or recklessness with respect to the
circumstances then being encountered by the
defendant.
18
KRS 503.120(2) provides in part as follows:
(2)
When the defendant is justified under KRS 503.050 to
503.110 in using force upon or toward the person of
another, but he wantonly or recklessly injures or
creates a risk of injury to innocent persons, the
justification afforded by those sections is
unavailable in a prosecution for an offense involving
wantonness or recklessness toward innocent persons.
See also Phillips v. Commonwealth, Ky., 17 S.W.3d 870, 875-76 (2000).
19
KRS 501.020(3) provides:
“Wantonly” -- A person acts wantonly with respect to
a result or to a circumstance described by a statute
defining an offense when he is aware of and
consciously disregards a substantial and
unjustifiable risk that the result will occur or that
the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes
a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. . .
.
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i.e., he was aware of the risk of death, but consciously
disregarded it.
Further, the jury would find him guilty of
reckless homicide if he acted recklessly,20 i.e., he was unaware
of the risk but reasonably should have been.
Johnson argues on appeal that the trial court erred by
failing to instruct the jury to acquit him if it found that his
decision to use deadly force for self-protection or for the
protection of another was mistaken, but reasonable.
He argues
that the instructions were erroneous because they failed to
specifically set forth an option for the jury to acquit him.
However, our review of the record reveals that Johnson
failed to adequately preserve this issue for appellate review.
“[The] [f]ailure to comply with RCr21 9.54(2)22 has consistently
20
KRS 501.020(4) provides:
“Recklessly” -- A person acts recklessly with respect
to a result or to a circumstance described by a
statute defining an offense when he fails to perceive
a substantial and unjustifiable risk that the result
will occur or that the circumstance exists. The risk
must be of such nature and degree that failure to
perceive it constitutes a gross deviation from the
standard of care that a reasonable person would
observe in the situation.
21
Kentucky Rules of Criminal Procedure.
22
RCr 9.54(2) provides:
No party may assign as error the giving or the
failure to give an instruction unless the party’s
position has been fairly and adequately presented to
the trial judge by an offered instruction or by
motion, or unless the party makes objection before
the court instructs the jury, stating specifically
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been interpreted to prevent review of claimed error in the
instructions because of the failure to preserve alleged error
for review.”23
Johnson stated in his brief, pursuant to CR24
76.12(4)(c)(v), that his objection to the jury instructions had
been preserved at trial and he referred this Court to the record
where he claims it was preserved.
However, in reviewing the
referenced portion of the record, we find that Johnson’s
objection was to the use of the word “mistaken” in the jury
instructions instead of “wanton” and “reckless” in describing
Johnson’s belief in the need for self-protection or the
protection of another.
While Johnson argued at trial that the
word “mistaken” would confuse the issue, he did not argue the
need for an instruction requiring acquittal if his belief was
mistaken but reasonable.
Regardless of this lack of
preservation, we conclude that the instructions met the
requirements of Hagar.
COLLATERAL FACTS
Johnson also argues that the trial court erred when it
denied the introduction of evidence regarding lawsuits that had
the matter to which the party objects and the ground
or grounds of the objection.
23
Commonwealth v. Thurman, Ky., 691 S.W.2d 213, 216 (1985).
24
Kentucky Rules of Civil Procedure.
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been filed against the bar and Kinman and evidence of Sandlin’s
violent nature.
At trial, Kinman testified that there had been
fights at the bar in the past, but that he had no “marks” on his
liquor license.
In response to this testimony, Johnson
attempted to impeach Kinman by questioning him about three
pending lawsuits against him and his bar alleging injuries
inflicted by bar patrons.
The trial court prohibited this line
of questioning as impeachment on a collateral fact and as
lacking relevancy.
Johnson then moved to admit into evidence
certified copies of the lawsuits, which was denied by the trial
court on the same grounds.
Johnson argued that the evidence of
the lawsuits was relevant because it would show the bar’s
violent environment and allow the jury to properly determine the
reasonableness of his belief in the need for self-protection and
the protection of another.
A collateral fact is one that could not have been
introduced into evidence for a purpose independently of the
self-contradiction.25
Further, “[i]t is generally recognized
that a witness may not be impeached with respect to a matter
which is irrelevant and collateral to the issues in the
action.”26
However, “[r]elevancy is established by any showing
25
Commonwealth v. Jackson, Ky., 281 S.W.2d 891, 893-94 (1955) overruled on
other grounds by Jett v. Commonwealth, Ky., 436 S.W.2d 788, 792 (1969).
26
Simmons v. Small, Ky.App., 986 S.W.2d 452, 455 (1998) (quoting Jackson,
supra).
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of probativeness, however slight.”27
“The purpose of this rule
is ‘to minimize confusion for the triers of fact by avoiding an
unwarranted and endless proliferation of side issues.’”28
Johnson argues that under Kentucky case law a
defendant’s right to present a defense prevails over the
collateral facts doctrine.
He claims that impeachment of a
witness may be allowed when it is raised by the defendant in “an
effort to help his own case,” and that it can be accomplished on
cross-examination of the witness being contradicted.
The
Commonwealth argues that the trial court was correct in not
allowing the admission of this evidence because these civil
suits were pending and proved nothing and that Kinman was not on
trial.
It further argued that mere allegations of unsettled
civil claims against the bar did not tend to make any fact in
issue more or less probable and were therefore irrelevant,
especially since there was no evidence offered that Johnson was
aware of previous violence at the bar, or that he had entered
the bar fearing for his safety.
Johnson also attempted to question Kinman regarding
Sandlin’s reputation for violence.
27
The trial court prohibited
Springer v. Commonwealth, Ky., 998 S.W.2d 439, 449 (1999).
Kentucky Rules of Evidence (KRE) 401 and 402.
28
See also
Simmons, 986 S.W.2d at 455 (quoting Lawson, The Kentucky Evidence Law
Handbook, § 4.10 (3d ed., 1993)).
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this line of questioning based on KRE 608, which limits
character impeachment to that of truthfulness.
Johnson argues
that while the trial court technically applied KRE 608
correctly, it violated his constitutional right to present a
complete defense.
Johnson argues that since he raised the
defense of self-protection during trial, that the jury was
required to determine whether he mistakenly used selfprotection.
He claims that without the admission of the
evidence of Sandlin’s violent reputation, he could not properly
develop his defense.
He contends that this evidence would have
explained to the jury the reasonableness of his belief in the
need for self-protection and that it would further help prove
that Sandlin was the initial aggressor.
Johnson asserts that
under KRE 404(a)(2) he should have been allowed to introduce a
pertinent character trait of a victim.
Even though Sandlin was
not a victim in this case, Johnson argues that he should not
lose the privilege of using KRE 404(a)(2) just because the
initial aggressor and the victim were two different people.
Once again, these issues were not properly preserved
for appellate review, since Johnson did not offer the evidence
into the record by an avowal.
KRE 103 outlines the procedures
for preserving issues regarding rulings made at trial as to the
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admissibility of evidence for appellate review.29
More
specifically, RCr 9.5230 describes the procedures for preserving
evidentiary issues for appellate review in a criminal trial when
the trial court sustains an objection to certain testimony.
The Supreme Court of Kentucky has consistently read
KRE 103 and RCr 9.52 as requiring an offer of avowal testimony
in order to preserve a ruling made at trial as to the
29
KRE 103 provides, in relevant part, as follows:
(a)
Effect of erroneous ruling. Error
may not be predicated upon a ruling which
admits or excludes evidence unless a
substantial right of the party is affected; and
. . .
(2)
(b)
30
Offer of proof. In case the ruling is
one excluding evidence, upon request of
the examining attorney, the witness may
make a specific offer of his answer to
the question.
Record of offer and ruling. The court may add
any other or further statement which shows the
character of the evidence, the form in which it
was offered, the objection made, and the ruling
thereon. It may direct the making of an offer
in question and answer form.
RCr 9.52 provides:
In an action tried by a jury, if an objection
to a question propounded to a witness is sustained by
the court, upon request of the examining attorney the
witness may make a specific offer of his or her
answer to the question. The court shall require the
offer to be made out of the hearing of the jury. The
court may add such other or further statement as
clearly shows the character of the evidence, the form
in which it was offered, the objection made, and the
ruling thereon.
In actions tried without a jury the
same procedure may be followed, except that the court
upon request shall take and report the evidence in
full, unless it clearly appears that the evidence is
not admissible on any ground or that the witness is
privileged.
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admissibility of evidence for appellate review.31
In Cain v.
Commonwealth,32 the Supreme Court explained that “without an
avowal to show what a witness would have said an appellate court
has no basis for determining whether an error in excluding his
proffered testimony was prejudicial.”33
The record does not include Johnson’s proffering by an
avowal any evidence regarding the lawsuits against Kinman and
the bar or Sandlin’s violent reputation.
Thus, this Court has
not been provided a meaningful basis for reviewing the decision
of the trial court concerning the admissibility of the
evidence.34
As the Supreme Court stated in Partin, supra,
“[c]ounsel’s version of the evidence is not enough.
court must have the words of the witness.”35
A reviewing
“A reviewing court
requires more than the general substance of excluded evidence in
order to determine whether a defendant has suffered prejudice.”36
31
See Hart v. Commonwealth, Ky., 116 S.W.3d 481, 485-86 (2003); Garrett v.
Commonwealth, Ky., 48 S.W.3d 6, 15 (2001); Commonwealth v. Ferrell, Ky., 17
S.W.3d 520, 523-24 (2000); and Partin v. Commonwealth, Ky., 918 S.W.2d 219,
223 (1996).
32
Ky., 554 S.W.2d 369 (1977).
33
Id. at 375.
34
See Hart, 116 S.W.3d at 483 (quoting the 1992 commentary to KRE 103).
35
918 S.W.2d at 223. See also Garrett, 48 S.W.3d at 15 (stating that “[w]hile
KRE 103(a)(2) and RCr 9.52 are both couched in terms of preserving oral
testimony as opposed to real evidence, a fair reading of those rules requires
avowal testimony to authenticate the document or object, then a tender of the
document or object to the court as an avowal exhibit” [emphasis added]).
36
Hart, 116 S.W.3d at 483.
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“Without an avowal, or a crystal ball, reviewing courts can
never know with any certainty what a given witness’s response to
a question would have been if the trial court had allowed them
to answer.”37
BIKER REFERENCES
Johnson further claims that the trial court
erred by denying his motion for a mistrial after the
Commonwealth’s witnesses, Kevin Stambaugh and Casandra Wilson,
impermissibly suggested to the jury during the guilt phase of
the trial that Johnson looked like a “biker.”
When asked by the
Commonwealth to describe Johnson’s clothing on the night of the
incident in question, Stambaugh stated that Johnson looked
“kinda like a biker.”
Johnson objected and argued that
references to Johnson being a biker had been discussed at a
pretrial hearing, to which the Commonwealth responded that this
hearing had regarded another witness.
mistrial, which the trial court denied.
Johnson then moved for a
court did admonish the jury.
However, the trial
The trial court then asked defense
counsel if he was requesting any further admonition, and he
replied that the one given was sufficient.
Later, when Casandra Wilson was asked by the
Commonwealth to describe the person she saw being escorted out
of the bar, she stated, “I hate to make generalizations, but
37
Ferrell, 17 S.W.3d at 525, n.10.
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kind of biker looking . . . .”
Johnson again objected and asked
for an admonition to the jury.
The trial court sustained the
objection and granted the requested relief.
The trial court
admonished the jury that it should disregard any attempt by
either Stambaugh or Wilson to “characterize” Johnson in their
testimony since such “characterization” is irrelevant to the
issue of Johnson’s guilt or innocence.
Kentucky law is clear that a mistrial should be
granted only where there exists a “‘manifest necessity for such
action or an urgent or real necessity.’”38
As explained in Wiley
v. Commonwealth,39 “‘[w]here, for reasons deemed compelling by
the trial judge, who is best situated intelligently to make such
a decision, the ends of substantial justice cannot be attained
without discontinuing the trial, a mistrial may be declared . .
. .’”40
Despite this broad discretion to grant a mistrial, a
trial court should do so only “under urgent circumstances, and
for very plain and obvious causes.”41
It is the general rule in this Commonwealth that an
admonition by the trial court after it sustained an objection to
38
Gosser v. Commonwealth, Ky., 31 S.W.3d 897, 906 (2000) (quoting Skaggs v.
Commonwealth, Ky., 694 S.W.2d 672, 678 (1985), cert denied, 476 U.S. 1130,
106 S.Ct. 1998, 90 L.Ed.2d 678 (1986)).
39
Ky.App., 575 S.W.2d 166 (1978).
40
Id. at 169 (quoting Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6
L.Ed.2d 901 (1961)).
41
Commonwealth v. Scott, Ky., 12 S.W.3d 682, 685 (2000).
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improper testimony is sufficient to avoid any resulting
prejudice.42
A jury is presumed to follow an instruction to
disregard inadmissible evidence unless there is an overwhelming
probability that the jury will be unable to follow the trial
court’s admonition and the inadmissible evidence is likely to be
devastating to the defendant.43
Our review of the record
disclosed no overwhelming probability that the jury was unable
to follow the trial court’s clear admonition.
Because the
admonition was sufficient to cure any error, the trial court
properly denied Johnson’s motion for a mistrial.
At the sentencing phase of the trial, the
Commonwealth, during the cross-examination of Johnson, asked him
about a sticker that was on the motorcycle he had ridden to the
bar.
The sticker read, “Support Your Local Hell’s Angels,
Chicago.”
Defense counsel’s objections were overruled and
Johnson testified that the sticker was put on the bike by a
friend who had worked on his bike and that he was not a member
of the Hell’s Angels.
While we agree with Johnson that it was
error for the trial court to overrule his objection to this
42
Willoughby v. Commonwealth, Ky., 510 S.W.2d 11, 12 (1974).
43
Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 859 (1993) overruled on
other grounds by Stringer v. Commonwealth, Ky., 956 S.W.2d 883 (1997).
-17-
irrelevant question, we nonetheless conclude under RCr 9.2444
that the error was harmless.
As stated in Abernathy v.
Commonwealth,45 “we are enjoined by RCr 9.24 . . . to disregard
[error] unless we are of the opinion that it affected the
‘substantial rights’ of the defendants. . . .
If upon a
consideration of the whole case, this court does not believe
there is a substantial possibility that the result would have
been any different, an irregularity will be held
nonpredjudicial.”46
In reviewing the entire record of this case,
we cannot conclude that this one minor piece of evidence
affected the jury’s decision on Johnson’s sentence.
Thus, the
error does not require reversal.
DIRECTED VERDICT
Finally, we reject Johnson’s argument that the trial
44
RCr 9.24 provides:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or
order, or in anything done or omitted by the court or
by any of the parties, is ground for granting a new
trial or for setting aside a verdict or for vacating,
modifying or otherwise disturbing a judgment or order
unless it appears to the court that the denial of
such relief would be inconsistent with substantial
justice. The court at every state of the proceeding
must disregard any error or defect in the proceeding
that does not affect the substantial rights of the
parties.
45
Ky., 439 S.W.2d 949 (1969) overruled on other grounds by Blake v.
Commonwealth, Ky., 646 S.W.2d 718 (1983).
46
Id. at 952.
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court erred by failing to grant him a directed verdict of
acquittal based on self-protection.
On a motion for directed
verdict, all fair and reasonable inferences from the evidence
are to be drawn in favor of the Commonwealth.47
“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.”48
In West v. Commonwealth,49 the Supreme Court discussed
at length the interplay between self-defense and a motion for
directed verdict of acquittal:
Only in the unusual case in which the
evidence conclusively establishes
justification and all of the elements of
self-defense are present is it proper to
direct a verdict of not guilty. . . . [A]
defendant’s statement that he acted in selfdefense or his description of events which
show such to be the case need not be
accepted at face value where the jury may
infer from his incredibility or the
improbability of the circumstances that one
or more of the elements necessary to
qualify for self-defense is missing. . . .
[I]f the evidence relied upon to establish
self-defense is contradicted or if there is
other evidence from which the jury could
reasonably conclude that some element of
self-defense is absent, a directed verdict
should not be given. While the Commonwealth
always bears the burden of proving every
47
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
48
Id.
49
Ky., 780 S.W.2d 600, 601 (1989).
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element of the crime charged, a defendant
relying upon self-defense bears the risk
that the jury will not be persuaded of his
version of the facts [citations omitted].
Johnson’s defense strategy was to depict himself and
his son as victims of continuous attacks by the bar patrons.
Johnson asserts that both Lovelace and Hicks were large men who
were in his path as he was trying to exit the bar and check on
his son.
Johnson claims that he responded, as anyone would, in
protecting his son and himself.
Johnson sought to persuade the
jury that when he came back into the bar with the gun and the
knife, that he was responding to the violence in the bar; that
it was his perception that Lovelace was going to harm him as
Lovelace tried to get past him as Lovelace tried to exit the
bar; and that the fatal shot was fired only after he had fired
two warning shots and only in response to Lovelace blocking his
path in a threatening manner.
Johnson made similar claims
regarding the stabbing of Hicks.
However, the record contains evidence that Johnson had
already had an altercation with others at the bar and that he
had been told to leave.
In addition, none of the witnesses saw
Lovelace with a gun, knife or other weapon, nor did any witness
see Lovelace attempt to harm or threaten Johnson.
Moreover, the
variances between Johnson’s statements at the scene and the
testimony at trial give rise to the possibility of fabrication.
-20-
In convicting Johnson of the offense of manslaughter
in the second degree, the jury was required to believe, beyond a
reasonable doubt, that when he killed Lovelace by shooting him
with a gun he acted wantonly in his belief in self-protection or
in protection of his son.
In convicting Johnson of the offense
of assault in the fourth degree, the jury was required to
believe, beyond a reasonable doubt, that when he injured Hicks
by stabbing him with a knife he acted recklessly in his belief
in self-protection or in protection of his son.
As has been
frequently noted, “[c]redibility and weight of the evidence are
matters within the exclusive province of the jury.”50
Based on
all the testimony presented at the trial, it was not clearly
unreasonable for the jury to find Johnson guilty of both
charges.
Thus, the trial court properly denied Johnson’s motion
for a directed verdict of acquittal.
For the foregoing reasons, the final judgment of the
Kenton Circuit Court is affirmed.
ALL CONCUR.
50
Commonwealth v. Smith, Ky., 5 S.W.3d 126, 129 (1999).
-21-
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
Samuel N. Potter
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
-22-
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