CARVER (PRINCESS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 8, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001404-MR
PRINCESS CARVER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 05-CR-001922
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: ACREE, KELLER AND LAMBERT, JUDGES.
ACREE, JUDGE: Princess Carver appeals the June 17, 2008 judgment of the
Jefferson Circuit Court convicting her of third-degree criminal child abuse and
fourth-degree assault. She was sentenced to 365 days’ imprisonment and a $500
fine for each charge, the sentences to be served concurrently. For the following
reasons we affirm in part and reverse in part.
Facts and procedure
Carver gave birth to A.H. on November 23, 2004, nearly three months
premature. Although A.H. was slightly developmentally delayed, doctors agreed
his development was normal considering his premature birth. On June 13, 2005,
however, A.H.’s parents took the seven-month-old to the emergency room at
Kosair Children’s Hospital with life-threatening injuries. Diagnostic tests revealed
A.H. was suffering from bleeding and swelling of the brain, spinal injuries, and
retinal hemorrhaging. Medical personnel also discovered fractures to A.H.’s ribs
which had begun to heal, in addition to fractures of the child’s legs. Ultimately,
severe injuries to A.H.’s brain, spine, and eyes resulted in permanent disability,
including blindness, confinement to a wheelchair, and the inability to feed himself
or play as a normal child.
Police and Child Services began investigating the cause of the child’s
injuries. Investigators and medical personnel interviewed his parents and other
family members. A.H.’s treating physicians believed his injuries were most likely
caused by a severe, repetitive acceleration-deceleration event, or shaking, though
an expert witness for Carver would disagree at trial that shaking alone could cause
such injuries. Carver admitted to shaking the baby three times on Sunday, June 12,
2005, but claimed the shaking was neither violent nor severe, and that she “just
barely” shook the child at all.
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Carver was arrested and charged with criminal child abuse and
assault. Following a trial conducted in May and June of 2008, a jury convicted
Carver of one count of third-degree criminal abuse, based on the shaking
allegations, and one count of fourth-degree assault. Carver was acquitted of
allegations that she abused A.H. by causing his legs to be fractured. This appeal
followed.
On appeal, Carver asserts the trial court erred in four respects: (1)
denying her motion to strike a juror for cause; (2) failing to define “physical
injury” in the jury instructions; (3) providing jury instructions for the criminal
abuse charge which presented multiple theories of guilt and therefore violated
Carver’s right to a unanimous verdict; and (4) assessing a fine despite finding
Carver was indigent. We will address each argument in turn.
Circuit court properly denied Carver’s motion
to exclude Juror #224935 for cause
The right to an impartial jury is fundamental to the American system
of justice, and is protected by the U.S. and Kentucky Constitutions. Riddle v.
Commonwealth, 864 S.W.2d 308, 310 (Ky. App. 1993); Fugett v. Commonwealth,
250 S.W.3d 604, 612 (Ky. 2008). Pursuant to Kentucky Rule(s) of Criminal
Procedure (RCr) 9.36(1), “[w]hen there is reasonable ground to believe that a
prospective juror cannot render a fair and impartial verdict on the evidence, that
juror shall be excused as not qualified.” Furthermore, “Kentucky has long
recognized that ‘a determination as to whether to exclude a juror for cause lies
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within the sound discretion of the trial court, and unless the action of the trial court
is an abuse of discretion or is clearly erroneous, an appellate court will not reverse
the trial court's determination.’” Fugett, 250 S.W.3d at 613 (citing Pendleton v.
Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002)).
In the instant case, the circuit judge chose not to exclude a juror who
had previously had contact with the prosecuting attorney. That juror stated the
Commonwealth’s Attorney “took care of a case” for her approximately ten to
fifteen years earlier. That juror later clarified that a family member had been
involved in a domestic violence matter in which her stepbrother had been
convicted of murder. She believed the case was handled fairly and believed justice
was served. The juror also said no aspect of the previous case would affect her
service in Carver’s case.
Carver now attempts to characterize the juror’s prior contact with the
prosecutor as an attorney-client relationship. “The relationship of attorney-client is
a contractual one, either expressed or implied by the conduct of the parties.”
Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky. 1978). Attorney-client relationships
place important responsibilities upon the attorney and sometimes give rise to
situations in which a potential juror should be excluded for cause. Riddle, 864
S.W.2d at 311 (citing Daugherty, 581 S.W.2d at 16, and In re Gilbert, 118 S.W.2d
535, 537 (Ky. 1938)). This is especially true when the relationship is ongoing and
the prospective juror indicates he or she would call upon the attorney again if legal
counsel became necessary in the future. Id. Here, however, there was no attorney-4-
client relationship. The prosecuting attorney never represented the juror. Instead,
she prosecuted a case against the juror’s family member on behalf of the
Commonwealth. While the juror may have cooperated with prosecutors in the
matter, there is no evidence of a contractual relationship between the prosecutor
and the juror.
Further, the juror stated her experience with the prosecutor would not
affect her decision making in Carver’s trial. Her statement that she would not be
biased, combined with the lack of a prior attorney-client relationship and the lapse
of ten to fifteen years between the first case and Carver’s case, gave the circuit
judge ample reason to believe the juror would be fair and impartial. It was not an
abuse of discretion for the circuit court to decline to exclude this juror from the
panel.
The jury instructions regarding assault were not deficient
for failing to define “physical injury”
Carver next argues the circuit court improperly failed to instruct the
jury on the definition of “physical injury.” Whether a trial court issued the proper
jury instruction is a question of law. Howell v. Commonwealth, 296 S.W.3d 430,
432-33 (Ky. App. 2009). Our review of the matter is therefore de novo. Id.
In the instant case, the jurors received the following instruction
regarding fourth-degree assault:
[Y]ou will find the defendant, Princess Carver, guilty
under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt, all of the following:
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(A) That in this county, between the 10th day of June,
2005, and the 13th day of June, 2005, the defendant
recklessly caused a physical injury to A.H. . . . by
shaking him and/or inflicting blunt force trauma;
AND
(B) The defendant’s hands and/or a blunt object was a
dangerous instrument as defined under Instruction No.
11[.]
Instruction No. 11, the definitional portion of the instructions, defined “dangerous
instrument” and “serious physical injury,” but not “physical injury.”
It is the obligation of the circuit court to “instruct the jury on the
whole law of the case.” Cannon v. Commonwealth, 777 S.W.2d 591, 593 (Ky.
1989). To that end, Kentucky Instructions to Juries provides the following
definition of physical injury: “substantial physical pain or any impairment of
physical condition.” 1 Cooper, Kentucky Instructions to Juries (Criminal) § 3.08.
(4th ed. 2005). Carver submitted a similar instruction to the circuit judge.
Erroneous jury instructions are presumed to be prejudicial.
Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky. App. 2000). It is therefore the
Commonwealth’s burden to show an erroneous instruction did not prejudice
Carver. Id. However, as the Commonwealth points out, “[a] formal definition is
not required to be included in jury instructions where the jury can understand the
term without such a definition[,]” and any such omission will be deemed harmless
error. Id. (citing Hardin v. Savageau, 906 S.W.2d 356, 358 (Ky. 1995)).
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Any error in failing to define the term in question was harmless.
Carver has not argued that the jury was actually confused by the omission of a
definition of “physical injury.” Further, the term is common, and its meaning is
plain. A reasonably intelligent juror would understand the phrase without
definition.
Carver argues the Supreme Court’s opinion in Commonwealth v.
Hager, 41 S.W.3d 828 (Ky. 2001), obligates this Court to conclude the omission of
the definition of “physical injury” requires reversal. Hager, however, is clearly
distinguishable from the instant case. In Hager, the Supreme Court found a
multitude of problems with the jury instructions. Notable among those problems
was that the jury convicted the defendant of fourth-degree assault without
receiving any instruction on the elements of that charge. Further, the only
evidence at trial was that the alleged victim had died following his encounter with
the defendant. In such a case, the Supreme Court ruled, assault is not the
appropriate offense; homicide is.
The Supreme Court did note that, “if the jury had been instructed on
the elements of fourth-degree assault, [the definitional instruction] also should
have included the definition of ‘physical injury,’ KRS [Kentucky Revised Statutes]
500.080(13), which is the result element of that offense.” Hager, 41 S.W.3d at
833. In the instant case, the jury was instructed on fourth-degree assault; only the
result element, the definition of physical injury, was omitted. We agree with
Carver that the definition of “physical injury” should have been included in the
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jury instructions. However, that determination is still subject to the harmless error
analysis. Hager, 35 S.W.3d at 379. Because the Commonwealth has met its
burden by showing no prejudice occurred to Carver as a result of this error, we
conclude the error was harmless and affirm.
The jury instructions regarding third-degree criminal abuse were not erroneous
Carver also argues the instruction on criminal abuse was erroneous,
claiming, “[b]ecause of the inclusion of ‘physical injury’ in the definition of
‘serious physical injury,’ Ms. Carver submits the failure to define ‘physical injury’
when ‘serous physical injury’ is defined is erroneous, similarly to the error in the
failure to define ‘course of conduct,’ a term used in the definition of ‘stalk.’” Brief
for Appellant, 18 (citation omitted).
The jury instruction regarding third-degree criminal abuse fully
defined every necessary term. Despite the fact that the phrase “serious physical
injury” contains the phrase “physical injury,” defining the latter term was
unnecessary. The former term is an element of this offense, and the latter is not.
Defining a term which is not necessary to the jury’s decision would only serve to
complicate and confuse matters, perhaps leading the jury to convict Carver of
third-degree abuse upon a finding she only had caused A.H. physical injury rather
than serious physical injury. The jury instruction was not erroneous in this respect.
The jury instruction on third-degree criminal assault denied Carver a
unanimous verdict
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“[A] defendant cannot be convicted of a criminal offense except by a
unanimous verdict,” pursuant to the Kentucky Constitution. Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)(citing Ky. Const. § 7; Cannon v.
Commonwealth, 163 S.W.2d 15 (Ky. 1942)). The right to a unanimous verdict is
violated when “the jury is presented with alternate theories of guilt in the
instructions, one of which is totally unsupported by the evidence.” Burnett v.
Commonwealth, 31 S.W.3d 878, 882 (Ky. 2000)(citing Boulder v. Commonwealth,
610 S.W. 615, 617 (Ky. 1980)(overruled on other grounds)). In such a situation, it
becomes the Commonwealth’s obligation to demonstrate it met its burden of proof
under each of the theories in the instruction; when the Commonwealth cannot
make such a showing, the defendant’s right to a unanimous verdict has been
violated. Id. at 883. Carver argues the instructions on third-degree criminal abuse
presented alternate theories, not all of which were supported by the evidence. We
agree.
KRS 508.120(1) defines third-degree criminal abuse as follows:
A person is guilty of criminal abuse in the third degree
when he recklessly abuses another person or permits
another person of whom he has actual custody to be
abused and thereby:
(a) Causes serious physical injury; or
(b) Places him in a situation that may cause him
serious physical injury; or
(c) Causes torture, cruel confinement or cruel
punishment;
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to a person twelve (12) years of age or less, or who is
physically helpless or mentally helpless.
KRS 508.120(1). The harm element, or prohibited result, may be fulfilled one of
three ways – by demonstrating the victim was caused ‘serious physical injury;’
experienced torture, cruel confinement, or cruel punishment; or was placed in a
situation which had the potential to cause serious physical injury. Each form of
harm to the victim is a separate theory of the offense. Cooper’s model instruction
reflects this. See 1 Cooper §§ 3.71A - 3.73B.
The instruction given to the jury in the instant case, however,
combined all three theories in one instruction. They required the jury to find
Carver guilty if they believed:
(A) That in this county, between the 1st day of May,
2005, and the 13th day of June, 2005, the defendant
recklessly abused A.H. . . . by shaking him;
AND
(B) That she thereby
(1) Caused serious physical injury to A.H. . . . ;
OR
(2) Caused A.H. . . . to be placed in a situation which
may have caused him serious physical injury;
OR
(3) That as a result thereof, A.H. . . . was subjected to
torture, or cruel punishment;
AND
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(C) That A.H. . . . was at that time twelve (12) years of
age or less.
(Emphasis added.) This instruction merely parroted the statutory language. The
jury was permitted, then, to convict Carver of this offense if it believed the alleged
abuse led to any one of the three harmful results to A.H. This situation is similar to
that in Burnett, in which the Supreme Court observed,
[U]nder the model instruction, the jury is instructed only
as to those statutory methods of trafficking that are
actually supported by the evidence. Whereas giving the
jury the general, statutory definition of trafficking likely
will result in the jury being presented with theories of
guilt not supported by the evidence. This is exactly what
happened in the case at bar.
Burnett, 31 S.W.3d at 882. The conviction of third-degree criminal abuse can
stand only if the Commonwealth met its burden of proof on each theory. We turn
now to an examination of the evidence.
The Commonwealth clearly met its burden with respect to the first
form of harm enumerated in KRS 508.020, serious physical injury. As discussed
earlier in this opinion, the evidence was unequivocal that A.H. suffered very
serious physical injury, and indeed nearly died.
There was evidence that A.H. suffered torture or cruel punishment.
The Supreme Court, in Stoker v. Commonwealth, 828 S.W.2d 619 (Ky. 1992),
determined that the beatings of four children with a wire coat hanger constituted
torture or cruel punishment because evidence supported the conclusion “the nature
of the beatings [was] cruel and indiscriminate, and far different in character from
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normal parental discipline.” Stoker, 828 S.W.2d at 625. Another defendant was
convicted of six counts of first-degree abuse for torture, cruel confinement, or cruel
punishment, one count each for breaking a child’s arm, three impact injuries to the
child’s abdomen, and two burn injuries. Ratliff v. Commonwealth, 194 S.W.3d 258
(Ky. 2006). If each of these injuries could constitute torture or cruel punishment
individually, certainly shaking A.H. to such an extent as to cause brain, retinal, and
spinal hemorrhages would constitute torture or cruel punishment as well. Carver’s
own expert testified that the injury could have occurred up to seventy-two hours
prior to A.H.’s admission to the hospital, and that it required very violent force.
Given other examples of torture and cruel punishment in Kentucky case law, a jury
could reasonably conclude A.H. experienced torture as well.
There was no evidence, however, that Carver caused A.H. to be
placed in a potentially harmful situation. Although there is no clear rule for what
constitutes placement in such a situation, the sequence of events presented at trial
does not conform to examples in a leading treatise on Kentucky criminal law.
George G. Seelig, Kentucky Criminal Law, § 9-6(b) (2d ed. 2008) (“Some
situations would easily qualify, e.g., leaving an infant unattended in a hot
automobile, permitting children to play with loaded weapons, etc. Others are far
more difficult to judge, e.g., hauling an infant in an automobile without use of a
safety seat, driving while intoxicated with children in the car, etc. There is no help
in the case law on this subject”). The evidence, though vigorously controverted,
was that Carver shook A.H. hard enough to cause massive brain swelling and
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hemorrhaging. While at least one witness testified that Carver had left A.H. alone
on the front porch prior to taking him to the hospital, that was a separate incident
from the alleged shaking, and could not have led to a conviction on this count.
Because this theory was unsupported by the evidence, the Commonwealth failed to
meet its burden of proof and deprived Carver of her right to a unanimous verdict.
Carver also argues she was denied a unanimous verdict because
Instruction No. 11, the definitions section, included a definition of abuse which
was not supported by the evidence. This, too, is reminiscent of the situation in
Burnett. In that case, the jury received instructions to find the defendant guilty if
they believed he was trafficking in a controlled substance. Burnett, 31 S.W.3d at
881. In the definitional section of the instructions, “trafficking” was defined as
follows: “to manufacture, distribute, sell or transfer a controlled substance.” Id.
While that was the correct statutory definition of trafficking, there was no evidence
the defendant had been manufacturing a drug. The Supreme Court in Burnett held
this was improper because the instructions presented a theory of the case not
supported by evidence.
Here, Instruction No. 7 required jurors to find Carver guilty if they
believed she had abused A.H. by shaking him. The definition section of the
instructions defined abuse as “the infliction of physical pain, injury, or mental
injury, or the deprivation of services which are necessary to maintain the health
and welfare of a person.” (Emphasis added). This is the statutory definition of
abuse as articulated in KRS 508.090(1), but Carver was not charged with abuse for
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depriving A.H. of medical attention.1 The jury should not have been given an
instruction which included this portion of the definition.
The Commonwealth urges us to find the erroneous definition was
mere “surplusage,” in accordance with the Supreme Court’s opinion in Tharp v.
Commonwealth, 40 S.W.3d 356 (Ky. 2000). That opinion said, “inclusion of any
definition of complicity in the instructions was surplusage, since the substantive
instructions embodied the essentials of the definition.” Id. at 364. Here, the
Commonwealth argues we should find the definitional instruction mere surplusage
because the substantive instruction properly laid out the elements of the crime.
This argument is based upon a misapplication of the case. The
defendant in Tharp did not raise the argument that she had been denied a
unanimous verdict. Her disagreement with the definitional instruction arose from a
dispute about whether it accurately reflected the statutory definition of complicity.
The Supreme Court simply found the definitional instruction was repetitive of the
substantive instruction; it did not rule – nor was it asked to – that the definition
could stand even though it presented theories which were unsupported by the
evidence.
Further, the Court in Burnett held that, when there is an issue of
unanimous verdict, any error is not subject to harmless error analysis. Burnett, 31
S.W.3d at 883. A finding in the instant case that the definitional instruction
regarding abuse was mere surplusage amounts to a finding that the error was
1
The instruction did omit that portion of the statute which clearly applied only to mentally or
physically disabled adults in the care of another person.
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harmless, which is not allowed. The Commonwealth was still required to prove
every theory presented in the instructions, including the definitional instruction,
beyond a reasonable doubt. It failed to do so and, therefore, Carver was deprived
of the right to a unanimous verdict in this respect as well.
Imposition of the fines is not palpable error
Carver next objects to the $500 fines imposed upon her for each
conviction, for a total of $1,000, pursuant to KRS 534.040(2). KRS 534.040(4)
prohibits the imposition of fines upon a defendant found to be indigent under KRS
Chapter 31. Carver was found indigent in accordance with that chapter and a
public defender was appointed to represent her.2 Carver raises this issue pursuant
to RCr 10.26, which permits this Court to review a matter which was not raised
before the trial court:
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.
RCr 10.26. Because Carver did not object to the imposition of a fine before the
circuit court, our review can only be for palpable error.
2
The form for the Order and Affidavit of Indigency contains the following standard language:
“Based on the above information, Sworn to before the Court, IT IS HEREBY ORDERED that
the above named defendant □ is □ is not deemed indigent under K.R.S. Chapter 31. By so
qualifying, and if requested above, the affiant is qualified for services as provided by KRS
Chapter 31.” The circuit judge responsible for making this determination signed the form, but
did not indicate whether she found Carver indigent by checking the proper box. However,
because Carver requested and was granted the appointment of counsel, we presume she was also
found indigent. See West v. Commonwealth, 887 S.W.2d 338, 342 (Ky. 1994) (“implicit in the
trial court’s order allowing the Public Defender to see [the defendant] must be a finding that [the
defendant] was indigent.”).
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Ordinarily, we would prohibit imposition of fines when the issue was
properly preserved. Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994)
(holding that because the defendant was represented by a public defender at
sentencing, the circuit court must have found him indigent; accordingly,
“imposition of any fine was inappropriate[.]”).
Even upon review for palpable error, we would reverse the circuit
court’s imposition of a fine upon an indigent person. Assessment of a fine would
be a ruling in clear contravention of the law. The Commonwealth, however,
argues Carver has waived her right to object to the fines because her trial counsel
asserted to the circuit judge that fines were appropriate. Here, Carver’s trial
counsel did not simply fail to raise the argument before the circuit judge; instead,
her attorney asserted to the circuit court that a fine could, in fact, be imposed. This
conversation occurred before the sentencing phase of trial, and affected the
instructions the circuit judge gave to the jury. Later, at Carver’s sentencing
hearing, her trial counsel stated “no position” on the issue. This was apparently a
strategic decision – the possibility she would receive only a fine was a risk she was
willing to take. We presume Carver and her attorney knew better the degree of
Carver’s indigence and ability to accumulate sufficient funds to pay a fine under
such circumstances. Now that the fine has been imposed, however, Carver wishes
to invoke the statute which would ordinarily have prohibited it in the first place.
The circuit judge did not commit palpable error in imposing a fine upon Carver in
light of her attorney’s representations to the court.
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The circuit court properly imposed the fines and refused to excuse
Juror #224935 for cause. Although the failure to define “physical injury” was
error, the error was harmless. We therefore affirm the circuit court on all those
issues. With respect to the jury instruction for criminal abuse, however, we
reverse. The instructions deprived Carver of the right to a unanimous verdict by
presenting alternate theories of guilt, not all of which were supported by the
evidence. We remand this matter for proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Cicely Jaracz Lambert
Assistant Appellant Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Christian K.R. Miller
Assistant Attorney General
Frankfort, Kentucky
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