ATE -7-7-05' LJ LATIMUS JUAN WINGATE HONORABLE MARY C . NOBLE, JUDGE COMMONWEALTH OF KENTUCKY
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2003-SC-000206-TG
LATIMUS JUAN WINGATE
LJ
ATE -7-7-05'
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
INDICTMENT NO. 97-CR-01171-002
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Fayette Circuit Court jury convicted Appellant, Latimus Juan Wingate, of
one count of first-degree manslaughter for the homicide of Anthony Taylor, and one
count of tampering with physical evidence . Appellant was sentenced to twenty-one
years to run concurrently with his federal sentence on an unrelated crime . He belatedly
appealed to this Court as a matter of right,' asserting five claims of reversible error: (1)
that the trial court erred when it excused a juror on the second day of trial for being late ;
(2) that the trial court erred in denying Appellant's pro se motion for "writ of error for
equal protection of right to factual calculation of `jail time credit' and/or time served upon
date of arrest;" (3) that the jury instructions were so erroneous on homicide and the
defense of self-protection as to constitute palpable error; (4) that there was insufficient
1
KY. CONST. § 110(2)(b) .
evidence that Appellant committed first-degree manslaughter; and (5) that there was
insufficient evidence that Appellant tampered with physical evidence. Discovering no
reversible error, we affirm .
Appellant and the victim, Anthony Taylor, were involved in an altercation
in 1994. Due to the difference in the size of the two men, Taylor "got the best of"
Appellant . Appellant and Taylor largely avoided contact until February 25, 1997, when
Appellant ran into Taylor at a barbershop. The two did not exchange words . However,
Appellant asserts that Taylor called him a profane name which upset Appellant
tremendously. Appellant acknowledges that after Taylor had departed the barbershop,
Appellant made a menacing comment to one of Taylor's friends, but Appellant denies
that the comment was intended to threaten Taylor's life .
Appellant, upon leaving the barbershop, met his friend, Manual Patton,
and his cousin, Quintin Wingate, and thereafter Quintin drove the three to get
something to eat. Appellant and Quintin had three firearms (one shotgun, one .38
revolver, and one 9 mm handgun) in the vehicle for "protection," in case they ran into
Taylor. Patton, who was in the backseat, was not armed . During this time, it appears
that Taylor was also obtaining his own firearm because he had heard of Appellant's
comment at the barbershop and had been informed that Appellant was carrying a
firearm.
At the corner of Third and Midland Avenue, in Lexington, Appellant and
Quintin Wingate noticed Taylor's vehicle a few cars ahead . They decided to follow
Taylor to try and discuss the situation . Taylor, upon observing Appellant and Quintin
behind him, pulled to the side of the street. Quintin then pulled alongside Taylor .
Appellant asserts that Taylor brandished a handgun first . Quintin testified
that he was unsure as to whether he or Taylor fired first, but that he was the first to fire
from his vehicle. Appellant asserts that he began firing the shotgun in self-defense
because Taylor had pointed his handgun at Appellant's head . Many shots were fired by
Quintin, Taylor and Appellant . Following the exchange of gunfire, Quintin drove away
despite Appellant's request to return to see if Taylor was dead .
Thereafter, Quintin drove to Arbor Grove. Evidence is in conflict as to
what happened to the firearms at that point. Both men deny having any knowledge as
to how the guns were disposed. An eyewitness, Rosalie Crutcher, testified that she
saw Appellant and Quintin running near her house and that Appellant was carrying two
firearms . She further testified that Appellant kicked the firearms under a parked vehicle
and 10-15 minutes thereafter Appellant returned and retrieved the firearms and took
them to another residence . The following day, Quintin's vehicle, while parked on
Grinstead Avenue, was set on fire . The fire was started by a Molotov cocktail .
Appellant denied any involvement in the fire.
On August 19, 1997, Appellant was charged with murder and tampering
with physical evidence . Appellant was already in federal custody facing charges of
possession and distribution of "cocaine base" when he was served with the murder and
tampering with physical evidence charges. On November 12, 1997, Appellant was
convicted of the federal drug charges and sentenced to two-hundred and eleven
months incarceration followed by five years of supervised release . On November 19,
1997, Appellant was arraigned on the state murder and tampering charges . The trial
began on December 7, 1998 .
At trial, the jury was instructed on all degrees of homicide and a selfprotection instruction was given . Appellant was convicted of first-degree manslaughter
and tampering with physical evidence . The jury recommended a twenty year sentence
for manslaughter and a one-year sentence for tampering with physical evidence, to run
concurrently . At sentencing, the trial court ordered the sentences to run consecutively,
for a total of twenty-one years, and the twenty-one year sentence was allowed to run
concurrently with Appellant's federal sentence of two-hundred and eleven months.
Excusal of a Juror
On appeal, Appellant first argues that the trial court erred by dismissing a
juror. On the second and final day of trial, Juror #655 had not appeared for court at
9:45 a.m ., forty-five minutes after the trial was scheduled to resume . The trial court
proposed that the juror be declared an alternate so the trial could proceed. Appellant,
an African-American, objected to the court's proposal on grounds that the juror to be
dismissed was the only African-American juror on the panel . Appellant argues that the
juror's dismissal destroyed randomness. Appellant further argues that the trial court
abused its discretion by excusing the juror without holding a hearing on why the juror
was late and why the excusal was required .
Under CR 47 .02,2 if it becomes necessary to dismiss a juror for any
reason, the trial is to continue unless the number of remaining jurors is less than that
required by law.3 This rule contemplates that circumstances will arise when it becomes
2 Pursuant to RCr 13.04, the Kentucky Rules of Civil Procedure are applicable to
criminal proceedings to the extent they are not superseded by or inconsistent with the
criminal procedural rules . See also, Commonwealth v . Burris, 590 S.W.2d 878, 879 (Ky.
1979), overruled on other grounds, Commonwealth v. Brindley , 724 S.W .2d 214 (Ky.
1 986)
3 Hubbard v. Commonwealth , 932 S.W.2d 381, 382 (Ky. App . 1996) .
4
necessary to dismiss a juror. We must consider whether the trial court's dismissal of
the juror in question was an abuse of discretion .5
On the first day of trial ten potential jurors, including Juror #655, were
absent when voire dire began. The trial judge relayed to the potential jurors the
importance of their service . She commented to the court audience that she understood
that it was raining ; however, those that failed to appear without contacting the court
administrator would have consequences . Juror #655 did appear eventually and was
selected as a juror. On the second day of trial, the court waited forty-five minutes for
Juror #655 and then held a bench conference with the attorneys . The judge revealed
that both the sheriff and the court administrator had tried to contact Juror #655 at his
residence but were unsuccessful . She also stated that she was aware of an automobile
accident near Juror #655's residence that was delaying traffic . The trial judge proposed
reassigning Juror #655 to alternate status in order to proceed with the trial . Appellant's
counsel said that he and his client had discussed the situation and understood the
Judge's position; however they wanted to note that Juror #655 was the only AfricanAmerican on the jury. The trial judge held that the court had waited a reasonable
amount of time and the trial proceeded .
Appellant's objection regarding the dismissal of Juror #655 does not
establish purposeful discrimination by the trial judge .6 An African-American defendant
alleging that members of his race have been impermissibly excluded may make a prima
4Davis v. Commonwealth , 795 S.W.2d 942, 949 (Ky. 1990) .
s
Sanders v. Commonwealth , 801 S.W.2d 665, 670 (Ky. 1990), cert. denied, 502 U.S .
831, 112 S .Ct. 107,116 L .Ed .2d 76 (1991) ; McQueen v. Commonwealth , 669 S.W .2d
519, 521 (Ky. 1984), cert. denied, 469 U .S . 893, 105 S .Ct. 269, 83 L.Ed .2d 205 (1984) ;
HH-u bbard, 932 S.W .2d at 383.
Cf. , Batson v . Kentucky , 476 U .S . 79, 94, 106 S .Ct. 1712, 90 L.Ed.2d 69 (1986).
facie case of purposeful discrimination by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.' The Appellant has not alleged any
discriminatory purpose in this appeal .
The trial court's dismissal of the juror by designating him as an alternate
was not improper and not clearly erroneous so as to amount to an abuse of discretion .
The trial court waited a reasonable length of time and made sufficient inquiries into the
juror's whereabouts to defeat any suggestion of abuse of discretion .
Jail Time Credit
Appellant next argues that the trial court erred in denying Appellant's pro
se motion for "writ of error for equal protection of right to factual calculation of `jail time
credit' and/or time served upon date of arrest." Appellant asserts that an evidentiary
hearing should be granted to determine his amount of jail credit for time spent in federal
custody . This issue falls under CR 60 .02, 8 but due to the belated nature of Appellant's
direct appeal, it is considered along with the other claims of reversible error.
On January 12, 1999, the trial court entered its final judgment, which
included zero days of credit for time served . The judgment stated that the Appellant
was given an opportunity to present information to mitigate his punishment, Appellant
was informed of the Presentence Investigation Report's contents and conclusions and
the Appellant was given an opportunity to controvert the report. He did not object to
failure to award credit for time served . Not until August 22, 2002, did Appellant file his
motion for "writ of error for equal protection of right to factual calculation of `jail time
Id., at 94.
8 Duncan v. Commonwealth, 614 S.W.2d 701, 702 (Ky. App. 1981), (in requesting this
Court to order the trial court to amend its original judgment, the Appellant is making a
motion to be relieved from the trial court's final judgment on the basis of mistake) .
6
credit' and/or time served upon date of arrest." The trial court denied Appellant's
motion.
RCr 11 .42 provides that a convicted defendant will not be permitted to
employ the rule as a means of retrying issues that could and should have been raised
in the original proceedings when the competency, adequacy, and effectiveness of
counsel are not in good faith questioned, and where the grounds of the motion are
matters that must have been known at the time of trial.9 Appellant's argument as to
credit for time served in federal custody could and should have been raised at
sentencing . The record is without any evidence that Appellant lacked knowledge of the
matter at the time of sentencing or that Appellant questioned his counsel's
effectiveness, competence or adequacy. Therefore, Appellant is bound by CR 60.02,
meaning that his motion is subject to the one-year limitation .' °
Appellant waited approximately three years and eight months to bring the
motion. Therefore, he is estopped from raising this issue before this Court . In addition,
Appellant did not set forth any extraordinary nature justifying the relief requested. Due
to the untimely filing of Appellant's pro se motion, we affirm the trial court's denial .
9 See, Hoskins v . Commonwealth , 420 S .W.2d 560 (Ky. 1967) ; and Thacker v .
Commonwealth, 476 S.W.2d 838 (Ky . 1972) . Duncan , 614 S.W.2d at 702.
10 CR 60 .02, "The motion shall be made within a reasonable time, and on grounds (a),
(b), and (c) not more than one year after the judgment, order, or proceeding was
entered or taken ."
Jury Instruct ions
Next, Appellant argues that the jury instructions were so erroneous that
reversal for a new trial is required . Appellant concedes that the issue is unpreserved.
However, he argues that there is palpable error in the instructions .
Appellant seeks review pursuant to the palpable error rule in RCr 10.26.
Appellant argues that the instructions constitute palpable error because : (1) Instruction
One failed to reference the various choices the jury could make with its corresponding
instruction numbers and failed to instruct on reasonable doubt for extreme emotional
disturbance ; (2) Instruction Two incorrectly defined "wanton" and "reckless" by
purporting to apply only to injury, whereas the result for this case was death, and failed
to include definitions of "physical force" and "deadly physical force ;" (3) Instructions Five
and Six implied that Appellant would be eligible for conviction of second-degree
manslaughter "if not guilty of one of the two previously described offenses, but guilty of
the other" ; and (4) Instruction Seven would have been more helpful to the jury had it
been labeled "initial aggressor qualification" and "wanton or reckless belief qualification"
and for the former to precede the latter.
Appellant's counsel participated in crafting these instructions . Thus, not
only were the alleged errors unpreserved, they were waived." Appellant relies on
Commonwealth v. Hager' 2 as authority. However, unlike in Ha er, since Appellant
waived any unpreserved error, we must review the instructions only for palpable error.
RCr 10.26 deals with palpable error. However, it is not a substitute for the
requirement that a litigant must contemporaneously object to preserve an error for
" Davis v. Commonwealth, 967 S.W .2d 574, 578 (Ky . 1998) .
12 41 S .W.3d 828 (Ky. 2001) .
review . 13 The general rule is that a party must make a proper objection to the trial judge
and request a ruling on that objection, or the issue is waived . 14 An appellate court may
consider an issue that was not preserved if it deems the error to be "palpable," one
which affected the defendant's "substantial rights" and resulted in "manifest injustice . " 15
A finding of palpable error must involve prejudice more egregious than that occurring in
reversible error, 16 and the error must have resulted in "manifest injustice ." " Authorities
discussing palpable error consider it to be composed of two elements : obviousness and
seriousness, the latter of which is present when "a failure to notice and correct such an
error would seriously affect the fairness, integrity, and public reputation of the judicial
proceeding ."
18
A court reviewing for palpable error must do so in light of the entire
record ; the inquiry is heavily dependent upon the facts of each case. 19
The instructions, although differing from Hager, do not involve such
egregious prejudice to justify reversal. The instructions were drafted from form-book
instructions .2° Nothing in the record indicates that any of the errors proposed by
Appellant would have caused the jury to have decided differently . The errors, if any, did
not result in manifest injustice so as to require a new trial .
RCr 9.22.
See , Commonwealth v. Pace , 82 S .W.3d 894 (Ky . 2002) . See also, Bell v .
Commonwealth, 473 S.W.2d 826 (Ky. 1971) .
RCr 10.26 .
16
Robert G. Lawson, The Kentucky Evidence Law Handbook , § 1 .10[8] [b], at 54 n.146
4th ed . LexisNexis 2003) .
KRE 103(e) ; Brock v. Commonwealth, 947 S.W .2d 24, 28 (Ky. 1997) .
,
18
Lawson, supra n. 16, § 1 .10[8][b], at 54 (quoting 1 McLaughlin, Weinstein s Federal
Evidence, § 103.42[3] (2d ed.2003)) .
United States v. Young , 470 U.S . 1, 16, 105 S.Ct. 1038,1046-47, 84 L.Ed.2d 1
1985) .
° See , William S . Cooper, Kentucky Instructions to Juries , §§ 11 .07, 11 .08B & 11 .11
(West 1993 & Supp . 2003).
13
14
Sufficiency of the Evidence
Appellant's final argument is that there was insufficient evidence for the
jury to find him guilty of first-degree manslaughter and/or tampering with physical
evidence .
On motion for directed verdict, the trial court must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth . "If the
evidence is sufficient to induce a reasonable juror to believe beyond a reasonable
doubt that the defendant is guilty, a directed verdict should not be granted. For the
purpose of ruling on the motion, the trial court must assume that the evidence for the
Commonwealth is true," and reserve "to the jury questions as to the credibility and
weight to be given to [the] evidence ." 21
If reasonable minds might fairly find guilt beyond a reasonable doubt, then
the evidence is sufficient to allow the case to go to the jury even though it is
circumstantial .22 If the evidence cannot meet that test, it is insufficient .23 There must be
evidence of substance, and the trial court is expressly authorized to direct a verdict for
the defendant if the prosecution produces no more than a mere scintilla of evidence .24
A review of the evidence presented in this case, including the facts laid out above,
clearly indicates that the trial judge correctly determined that a reasonable juror could
fairly find guilt beyond a reasonable doubt.
The Medical Examiner found that Taylor had died from a shotgun blast
directly to the back of his head . The Commonwealth asserts that this, along with the
21
22
23
24
Commonwealth v. Benham, 816 S.W .2d 186,187-188 (Ky. 1991) .
Commonwealth v. Sawhill, 660 S.W .2d 3, 4 (Ky. 1983) .
Hodges v. Commonwealth , 473 S .W .2d 811, 814 (Ky. 1971) .
Benham , 816 S.W.2d at 187-88 .
10
physical evidence that Taylor's back window had been shot out, indicated that Taylor
had been killed from behind by Appellant since Appellant was using the shotgun .
Therefore with respect to the charge of first-degree manslaughter, the circumstances
surrounding the events that occurred the day of the shooting along with the medical
examiner's findings are sufficient to permit a reasonable juror to find Appellant guilty.
With respect to the charge of tampering with physical evidence, the
events that occurred following the shooting, including the disappearance of the
firearms, and the subsequent burning of Quintin's vehicle, coupled with the testimony of
Rosalie Crutcher, are sufficient to permit a reasonable juror to find Appellant guilty .
The prosecution produced evidence that was considerably more than a
mere scintilla and the case was properly submitted to the jury for its verdict. The
judgment of the Fayette Circuit Court is affirmed .
Lambert, C .J ., and Graves, Johnstone, Scott, and Wintersheimer, JJ.,
concur . Cooper, J ., concurs in result only.
COUNSEL FOR APPELLANT :
Emily Holt Rhorer
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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