JACKSON (MARK) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE KEVIN HORNE, JUDGE
ACTION NO. 05-CR-00498
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: Mark Jackson appeals from a judgment of conviction by the
Boone Circuit Court finding him guilty of complicity to commit second-degree
robbery and for being a first-degree persistent felony offender (PFO I). He argues
that his trial was tainted by numerous instances of prosecutorial misconduct, and
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
that he was entitled to a directed verdict on the PFO I charge. However, most of
his claims of prosecutorial misconduct are not preserved, and we find that none of
them, either individually or collectively, rise to the level of palpable error. We also
find that there was sufficient evidence for the trial court to submit the PFO I charge
to the jury. Hence, we affirm.
The underlying facts of this action are not in dispute. During the early
morning hours of July 5, 2005, Susan Neal was working at the front desk of the Ivy
Lodge hotel in Boone County. Around 1:45 a.m., two men wearing camouflage
pants and ball caps entered the lobby. One of the men walked behind the counter
and told Neal, “I want everything.” The other man remained in front of the counter
and brandished a knife. The man behind the counter then took the cash drawer,
which contained approximately $300.00. Before leaving, one of the men warned
Neal not to call the police.
Despite the warning, Neal immediately called the police to report the
robbery. While talking on the phone, she stated that she saw a dark blue, four-door
sedan that looked like a Cadillac pull out of the parking lot. She also told the
operator that she saw the vehicle go under the I-75 overpass.
While responding to the call, Lt. Jim Wermeling reported that he saw
a vehicle matching that description on the northbound ramp to I-75. Since he was
on the other side of the interstate, he radioed ahead with the location and
description of the vehicle. Shortly thereafter, Deputy Roger Nelms saw the vehicle
traveling north on I-75. Deputy Nelms stated that both occupants were wearing
When other officers arrived, Deputy Nelms stopped the vehicle.
There were two occupants in the vehicle: the driver, Phillip Cain, and a passenger,
Jackson. Police recovered a knife from Cain, and the cash drawer and money from
the Ivy Lodge were found in the back seat. The police then took Cain and Jackson
back to the Ivy Lodge. Neal identified Jackson as the man who came behind the
counter, and Cain as the one in front of the counter holding the knife.
On August 2, 2005, a Boone County grand jury returned an
indictment charging Jackson with complicity to commit first-degree robbery and
for being a first-degree persistent felony offender. Cain was also charged in a
separate indictment. The matter proceeded to trial on January 18, 2007.2 At trial,
Jackson admitted that he had been in the vehicle at the time of the robbery. But he
asserted that he had been asleep in the back seat at the time. He also alleged that
Cain committed the robbery with another man, who fled in another vehicle.
Nevertheless, the jury found Jackson guilty of complicity to seconddegree robbery and being a PFO I. The jury fixed his sentence at ten years’
Although not relevant to this appeal, the delay is attributable to a number of pre-trial motions.
Jackson initially filed a motion to suppress the evidence seized from the stop and search of the
vehicle. Following a hearing, the trial court denied the motion. Thereafter, the court conducted
a competency evaluation, after which the court found Jackson competent to stand trial. Later,
Jackson asked that his appointed counsel withdraw due to a conflict. In May 2006, Jackson
accepted the Commonwealth’s offer on a plea of guilty. However, the trial court allowed him to
withdraw the plea in July of 2006. The scheduled trial was delayed several more times due to
the unavailability of witnesses.
imprisonment, enhanced to fifteen years by virtue of his status as a PFO I. The
trial court imposed the jury’s sentence, and this appeal followed.
Jackson first argues that his trial was tainted by prosecutorial
misconduct on a number of grounds. But for the most part, Jackson failed to
preserve these issues by contemporaneous objections. Consequently, we must
review these claims under the palpable error rule of Kentucky Rules of Criminal
Procedure (RCr) 10.26. To prevail on an unpreserved claim under palpable error,
one must show that the error resulted in manifest injustice. Martin v.
Commonwealth, 207 S.W.3d 1, 3, (Ky. 2006). We find that the majority of the
claims did not amount to error, and none rise to the level of palpable error.
Jackson first argues that the Commonwealth made an improper
reference to an uncharged collateral bad act. During opening statements, the
prosecutor told the jury that Jackson and Cain had driven to the Ivy Lodge hotel in
a stolen vehicle. Jackson did not object to the statement at that time. However, he
did object when the Commonwealth attempted to call the vehicle’s owner to testify
that it had been stolen. The trial court sustained the objection and excluded the
testimony. However, the court denied Jackson’s request for an admonition to
disregard the Commonwealth’s statement during opening statements.
Jackson maintains that the prosecutor’s statements during opening
statements were improper because they referred to facts not in evidence, and
because they referred to evidence of prior bad acts in violation of Kentucky Rules
of Evidence (KRE) 404(b). We find no indication that the prosecutor engaged in
deliberate misconduct. The purpose of an opening statement “is to state what
evidence will be presented, to make it easier for the jurors to understand what is to
follow, and to relate parts of the evidence and testimony to the whole[.]” United
States v. Dinitz, 424 U.S. 600, 612, 96 S. Ct. 1075, 1082, 47 L. Ed. 2d 267 (1976)
(Burger, C.J., concurring). In this case, the prosecutor intended to introduce
evidence that the vehicle had been reported as stolen, but the trial court excluded
the evidence after he mentioned it in his opening statement. Consequently, we
cannot find that the prosecutor deliberately attempted to inform the jury of facts
which were not placed into evidence.
And as previously noted, Jackson did not make a contemporaneous
objection to the prosecutor’s statement. Furthermore, Jackson’s only objection to
the evidence was that it was not relevant to the charged crimes, or that its
prejudicial effect outweighed its probative value. The trial court sustained this
objection, but he did not assert that the evidence also amounted to evidence of
collateral bad acts. Nor does Jackson argue on appeal that the trial court erred by
denying his request for a limiting instruction. Under the circumstances, we cannot
find that the prosecutor’s reference amounted to error, palpable or otherwise.
Jackson next argues that the prosecutor made improper comments
about his defense counsel. During closing argument, the prosecutor stated that the
defense’s argument implied that the police were lying. The prosecutor also argued
that Jackson’s counsel was attempting to distract the jury by “throw[ing] up red
herrings, to make you ignore the big picture.” The prosecutor also asserted that the
defense’s attempts to highlight inconsistencies in the testimony amounted to
making “a mountain out of a molehill.” Jackson contends that these statements
went beyond fair comment on defense strategy and amounted to personal attacks
on defense counsel. We disagree.
First, Jackson concedes that this issue is not preserved for appeal.
Thus, we review the issue under the palpable error standard. Moreover, the
prosecutor fairly commented on the defense’s strategy and theory of the case.
Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987), overruled on other
grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006). When
considered in context, we cannot find that the remarks were inflammatory, nor
were they personally directed against Jackson’s counsel. Consequently, the
prosecutor’s comments fell well within the bounds of permissible argument. See
also Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001).
Similarly, Jackson raises an unpreserved argument that the prosecutor
improperly attempted to define reasonable doubt for the jury. During his voir dire
statement, the prosecutor told the jury that reasonable doubt did not mean proof
beyond a shadow of a doubt. The prosecutor repeated this comment during his
opening statement. In Johnson v. Commonwealth, 184 S.W.3d 544, 548 (Ky.
2005), the Kentucky Supreme Court held the statement “[n]obody has to prove
anything beyond a shadow of a doubt” did not violate the prohibition against
defining “proof beyond a reasonable doubt.” Further, the Commonwealth did not
engage in a lengthy discussion of the standard of proof. Thus, even if the
prosecutor’s statement was improper, it did not rise to the level of manifest
injustice constituting reversible error. Brooks v. Commonwealth, 217 S.W.3d 219,
225 (Ky. 2007).
In his last unpreserved claim of prosecutorial misconduct, Jackson
argues that he was unfairly prejudiced by the Commonwealth’s reference to his codefendant’s guilty plea. During voir dire, the prosecutor informed the jury panel
that Cain had also been charged in this crime, that he had pled guilty, and that he
may testify at trial.3 Generally, it is improper for the Commonwealth to show,
during its case-in-chief, that a co-indictee has already been convicted under the
indictment. See Tipton v. Commonwealth, 640 S.W.2d 818, 820 (Ky. 1982), and
Parido v. Commonwealth, 547 S.W.2d 125, 127 (Ky. 1977). However, Jackson
failed to object to the prosecutor’s statement during voir dire. Moreover, his
counsel cross-examined a police witness about Cain’s guilty plea, and brought it to
the jury’s attention during closing argument. When a defendant permits the
introduction of such evidence for purposes of trial strategy, he will not be heard to
complain after the strategy failed. St. Clair v. Commonwealth, 140 S.W.3d 510,
544-45 (Ky. 2004).
Jackson also contends that he was denied a fair trial due to the
cumulative effect of the alleged prosecutorial misconduct. We have reviewed the
individual allegations and find no misconduct except for a possible error involving
an attempt to define reasonable doubt. Since this single issue does not rise to the
Cain did not testify at trial.
level of reversible error, there can be no cumulative error. Simmons v.
Commonwealth, 191 S.W.3d 557, 568 (Ky. 2006).
Finally, Jackson argues that he was entitled to a directed verdict on
the PFO I charge. To support a conviction for PFO I, the Commonwealth must
prove that the defendant was previously convicted of two or more felony offenses;
that the defendant received sentences of one or more years on these convictions;
that the defendant was over the age of 18 at the time the offenses were committed;
and that the defendant:
1. Completed service of the sentence imposed on any of
the previous felony convictions within five (5) years
prior to the date of the commission of the felony for
which he now stands convicted; or
2. Was on probation, parole, conditional discharge,
conditional release, furlough, appeal bond, or any other
form of legal release from any of the previous felony
convictions at the time of commission of the felony for
which he now stands convicted; or
3. Was discharged from probation, parole, conditional
discharge, conditional release, or any other form of legal
release on any of the previous felony convictions within
five (5) years prior to the date of commission of the
felony for which he now stands convicted; or
4. Was in custody from the previous felony conviction at
the time of commission of the felony for which he now
stands convicted; or
5. Had escaped from custody while serving any of the
previous felony convictions at the time of commission of
the felony for which he now stands convicted.
Specifically, Jackson contends that the Commonwealth failed to
introduce documentary evidence showing that he had either completed his service
of the sentence or was discharged on probation or parole on one or more of the
prior convictions, within five years of committing the current offense. Jackson
raised this issue on a motion for directed verdict at the close of the
Commonwealth’s case, and the trial court sua sponte renewed the motion at the
close of all evidence. Therefore, we conclude that this issue is properly preserved
Nevertheless, we find that the trial court properly denied the motion
for a directed verdict. The Commonwealth introduced evidence showing that
Jackson had been convicted of two eligible felonies in Ohio – one in 1983 and the
other in 1996.4 On the 1996 conviction, Jackson received a minimum sentence of
eight years’ imprisonment. The Commonwealth failed to produce any
documentary evidence showing when Jackson completed service of that sentence.
However, Jackson testified on cross-examination that he had been in prison from
1996 until eighteen months before he was arrested on the current charges. While
Jackson’s testimony was not entirely clear on this point, and clearly was not the
best evidence, we conclude that it was sufficient to support the jury’s finding of
The Commonwealth also introduced evidence that Jackson was convicted in 1983 of another
felony in Ohio, for which he received a sentence of six months to five years. The
Commonwealth did not introduce any evidence of the actual amount of time which he served on
this sentence, but Jackson testified that he served only six months on this offense. Given the
other 1983 conviction and Jackson’s failure to appeal from the PFO instruction, the remaining
evidence was sufficient to support the jury’s finding of guilt on the PFO I charge.
guilt on the PFO I charge. Given the length of Jackson’s sentence and about when
he was released, the jury could make a reasonable inference that Jackson
completed service on his 1996 felony within five years of committing the instant
offense. Shabazz v. Commonwealth, 153 S.W.3d 806, 813-14 (Ky. 2005). Under
these circumstances, the trial court properly submitted the issue to the jury.
Accordingly, the judgment of conviction by the Boone Circuit Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Assistant Public Advocate
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General