JIMMY MASON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 11, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000975-MR
JIMMY MASON
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 04-CR-00089
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Jimmy Mason has appealed from the judgment and
sentence of the Casey Circuit Court entered on May 12, 2005,
following a jury trial wherein he was found guilty of possession
of a handgun by a convicted felon.1
Having concluded that the
prosecutor’s closing argument during the guilt phase of the
trial was not improper, we affirm.
1
Kentucky Revised Statutes (KRS) 527.040.
On July 26, 2004, Mason was indicted by a Casey County
grand jury for possession of a handgun by a convicted felon.2
Mason pled not guilty and the case proceeded to a jury trial
held on April 7, 2005.
Prior to opening statements, the trial
court allowed Mason’s indictment to be amended to state that
Mason “possessed or transported a handgun after having been
convicted of a felony” [emphasis added].
The Commonwealth presented evidence, from Joseph
Allen, who was charged along with Mason and reached a plea
bargain agreement with the Commonwealth, Casey County Deputy
Sheriff Dennis Allen, Wanda Allen,3 and Charles Ritter, the owner
of a pawnshop, that on July 13, 2004, Mason and Joseph Allen
went to Wanda Allen’s home and stole a .22 caliber handgun.
The
two men then proceeded to a pawnshop located in Liberty,
Kentucky, and pawned the stolen handgun.
Following the
incident, Mason, upon insistence by his mother, contacted Deputy
Sheriff Allen and told him that Joseph Allen had stolen the
handgun and that Mason had taken it into the pawnshop.4
Deputy
Allen advised Mason to go to the Sheriff’s office and to write
out a statement of the events that had occurred, but Mason
2
KRS 527.040(2) provides that “[p]ossession of a firearm by a convicted felon
is a Class D felony unless the firearm possessed is a handgun in which case
it is a Class C felony.”
3
Wanda Allen is Joseph Allen’s grandmother.
4
Mason admits that he drove Joseph Allen to the pawnshop while Allen had
possession of the handgun, but he denies taking the handgun into the
pawnshop.
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refused to do so.
At trial, Mason denied that he was ever in
Wanda Allen’s home or that he told Deputy Allen that he had
taken the handgun into the pawnshop.
The jury found Mason
guilty as charged and recommended a sentence of seven years’
imprisonment.
On May 12, 2005, the trial court followed the
jury’s recommendation in sentencing Mason.
This appeal
followed.
Mason contends in his appeal that he is entitled to a
new trial because the prosecutor made improper statements during
his closing argument.
Relying on United States v. Francis,5
Mason specifically challenges the following statements made by
the prosecutor during his closing argument:
(1) “It is my
opinion from the evidence that . . . [Mason] took that firearm”;
(2) “[Joseph Allen had] absolutely no reason to come up here and
completely makeup a story”; (3) the prosecutor’s reference to
defense counsel attempting to “misguide this jury” regarding the
telephone conversation between Mason and Deputy Allen; and (4)
the prosecutor’s indication that Mason’s statement to Joseph
Allen in the pawnshop that “it’s hot” referred to the handgun
being stolen, rather than to the weather being hot on that day.
5
170 F.3d 546, 551-52 (6th Cir. 1999) (noting that it was improper for the
prosecutor to call the defendant a liar in her closing argument, without
basing the attacks on the evidence adduced at trial, and finding that the
prosecutor should have given examples of discrepancies in the defendant’s
testimony and then drawn the conclusion that he lied).
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In determining whether the prosecutor’s conduct “was
of such an ‘egregious’ nature as to deny the accused his
constitutional right of due process of law[,]”6 a reviewing court
must evaluate a claim of prosecutorial misconduct by focusing
“on the overall fairness of the trial, and not the culpability
of the prosecutor.”7
As our Supreme Court noted in Barnes v.
Commonwealth,8 prosecutorial misconduct in a closing argument
will result in reversal only under the following circumstances:
[I]f the misconduct is “flagrant” or if each
of the following three conditions is
satisfied [emphasis original]:
(1)
Proof of defendant’s guilt is not
overwhelming;
(2)
Defense counsel objected; and
(3)
The trial court failed to cure the
error with a sufficient admonishment to
the jury.9
Since no objection was made to the prosecutor’s
closing argument, Mason seeks review of this unpreserved alleged
6
Slaughter v. Commonwealth, 744 S.W.2d 407, 411 (Ky. 1987) (citing Donnelly
v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).
7
Id. at 411-12 (citing Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982)).
8
91 S.W.3d 564 (Ky. 2002).
9
Id. at 568 (citing United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.
1994)).
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“flagrant” error pursuant to RCr10 10.26 under the palpable error
standard of review.11
A palpable error is one which affects the
substantial rights of a party and relief may
be granted for palpable errors only upon a
determination that a manifest injustice has
resulted from the error. This means, upon
consideration of the whole case, the
reviewing court must conclude that a
substantial possibility exists that the
result would have been different in order to
grant relief.12
In Young v. Commonwealth,13 our Supreme Court set out the
following factors to be considered in determining whether a
prosecutor’s statements constitute palpable error: (1) an
“examination of both the amount of punishment fixed by the
verdict and the weight of evidence supporting that
punishment[;]” (2) “whether the Commonwealth’s statements are
supported by facts in the record[;]” (3) “whether the allegedly
improper statements appeared to rebut arguments raised by
10
Kentucky Rules of Criminal Procedure.
11
RCr 10.26 provides:
A palpable error which affects the substantial
rights of a party may be considered by the
court on motion for a new trial or by an
appellate court on appeal, even though
insufficiently raised or preserved for review,
and appropriate relief may be granted upon a
determination that manifest injustice has
resulted from the error.
12
Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996) (citing Jackson v.
Commonwealth, 717 S.W.2d 511, 513 (Ky.App. 1986)).
13
25 S.W.3d 66 (Ky. 2000).
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defense counsel[;]” and (4) “these closing arguments, ‘as a
whole,’ and . . . the wide latitude . . . allowed parties during
closing arguments” [footnotes omitted].14
In the case before us, Mason testified at his trial
and told the jury that he was merely a victim who had tried to
do a good deed to help out his stepfather by taking Joseph Allen
to cash a check.
However, the Commonwealth provided testimony
from Deputy Allen that Mason told him he had taken the gun into
the pawnshop.
Further, the fact that Joseph Allen had already
pled guilty to possession of a firearm by a convicted a felon
and was serving a sentence for that conviction based on this
incident was disclosed to the jury, and they knew that Allen
received a one-year sentence, the minimum sentence for the Class
D felony of possession of a firearm by a convicted felon, when
he could have faced a ten-year maximum sentence for the Class C
felony of possession of a handgun by a convicted felon.
Judging the credibility of a witness lies within the
province of the jury.15
Mason’s guilt turned upon which
testimony from the conflicting testimony the jury chose to
believe.
This disputed evidence provided the prosecutor with a
sufficient basis to support his statements in his closing
argument that Mason had been untruthful to the jury.
14
Young, 25 S.W.3d at 74-5.
15
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
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A prosecutor may comment on the credibility of the
defendant, like any other witness, if he or she takes the
stand,16 and “may comment on tactics, . . . evidence, and . . .
as to the falsity of a defense position.”17
In this case, the
prosecutor properly challenged Mason’s claim that he was an
innocent bystander, and his closing argument was consistent with
the evidence presented by the Commonwealth.
Additionally,
Mason’s attorney in his closing argument stated that Joseph
Allen “was lying to you when he said that this guy [Mason] was
in the house.”
Thus, in reviewing the closing argument as a
whole, we conclude that there was no prosecutorial misconduct.
For the foregoing reasons, the judgment of the Casey
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald H. Morehead
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
16
Tamme v. Commonwealth, 973 S.W.2d 13, 39 (Ky. 1998).
17
Slaughter, 744 S.W.2d at 412.
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