MATTHEW M. JACKSON V. COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNATED "NOT TO BE
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY IN ANY OTHER
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RENDERED: AUGUST 25, 2005
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2003-SC-000777-PWR
MATTHEW M. JACKSON
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
NO.03-CR-00333
V
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Matthew M. Jackson, was convicted of first-degree robbery by
complicity (three counts) @ndfirst-degree burglary by complicity (three counts). Jackson
was sentenced to ehot8l of sixty years of imprisonment. He appeals to this court as a
matter of right.'
Raising two issues, Jackson requests that the judgment of the Warren
Circuit Court bereversed and thGtthecase bGremanded to that court for a new trial .
First, Jackson argues that the trial court committed reversible error in overruling his
motions to
excuse two prospective
jurors for cause. Second, he contends that the trial
court committed reversible error by admitting evidence of other crimes
KRE 4O4'b) . We
affirm .
.
'Ky Const . G 110(2)/b\ .
in violation of
The Warren County Grand Jury indicted Jackson on May 14, 2003 for the
following charges: (1) first-degree robbery (three counts), (2) first-degree robbery by
complicity (three counts), (3) first-degree rape, (4) kidnapping (six counts), (5)
kidnapping by complicity (six counts), (6) first-degree burglary (three counts), (7) firstdegree burglary by complicity (three counts), and (8) first-degree sexual abuse . The
charges stem from three late-night robberies of Blockbuster Video stores in Bowling
Green between July 2000 and October 2000 . During two of the robberies, two female
employees were sexually assaulted .
Jackson had previously pled guilty in the Robertson Circuit Court in
Tennessee to the late-night robbery of a Nashville-area Blockbuster store after being
apprehended at the scene. Jackson also pled guilty to raping a female employee of that
store. The Tennessee robbery/rape occurred on October 9, 2000, five days after the
last of the instant robberies . During the investigation of the Tennessee crimes, Jackson
confessed to robbing several Nashville-area Blockbuster stores on June 5, 2000, and
August 24, 2000 . Other Blockbuster stores were also robbed in the Nashville area on
July 4, 2000, and August 28, 2000 . Jackson also told Tennessee authorities that he
was at all three of the Bowling Green robberies, but that other people he was working
with carried out the crimes. Nashville, Tennessee, is located approximately seventy
miles to the south of Bowing Green, and the five Nashville robberies were similar to the
three Bowling Green robberies.
Before Jackson's trial, the Commonwealth declared its intent to introduce
evidence of the Nashville robberies against the defendant pursuant to KRE 404(b).
Jackson objected, arguing that evidence of these crimes was so prejudicial that it would
violate his right to due process of law . The trial court overruled this objection, finding
that the crimes were "signature crimes ."
Jackson was tried on August 19 through August 22, 2003 . During voir
dire, Jackson moved to excuse Jurors 40 and 74 for cause. Both motions for excusal
argued that the jurors were biased toward harsher penalties for the rape charge . The
trial court overruled the motions, and as a result, Jackson was forced to use peremptory
challenges to strike the jurors .
The Commonwealth began its case by introducing evidence of the
Nashville robberies. At this time, Jackson asked the trial court to reconsider its KRE
404(b) ruling . When the trial court refused to alter its ruling, Jackson noted his ongoing
objection to the admissibility of the evidence for the record . The Commonwealth
introduced evidence of four of the five Nashville robberies before presenting any
evidence pertaining to the Bowling Green robberies .
Jackson elected not to present any evidence . At the close of all proof, he
moved to invoke the kidnapping exemption statute and for a directed verdict. The trial
court granted the motion and dismissed the kidnapping and kidnapping by complicity
charges.
A jury found Jackson guilty of three counts of complicity to robbery in the
first degree and three counts of complicity to burglary in the first degree. He was
acquitted of the remaining charges, including the alleged sex crimes. The jury
recommended twenty-year terms of imprisonment for each count, with the robbery
sentences to run concurrently with the burglary sentences for a total of sixty years
imprisonment.
Jackson's first argument is that the trial court abused its discretion in
overruling his motions to excuse two prospective jurors for cause. Juror 40 told the trial
court that he had a daughter who sometimes worked a late-night job . He said this made
him "more sensitive" to the rape charge. Defense counsel asked the juror if he could
give equal consideration to lesser and harsher rape penalties . Juror 40 said this would
depend on the circumstances and the evidence presented . When asked by defense
counsel if he would lean toward the maximum penalty for the rape charge, the juror said
"I guess ." The trial court then asked Juror 40 if he could consider the full range of
penalties, and he replied that he would be reasonable in light of the evidence presented .
Juror 74 has two daughters, and she told the trial court that she
remembered mentioning the robberies to her children . When defense counsel asked
her about the rape penalty, she said she would probably not lean toward the minimum
penalty. The juror said that while she would not be afraid to impose the maximum
penalty, she would not necessarily rule out the most lenient, either . The trial court
concluded the questioning of Juror 74 by informing her that she should expect the
Commonwealth and the defense to introduce evidence supporting harsher and more
lenient penalties, respectively . She said that she would be able to consider all of the
options .
The determination of whether to excuse a juror for cause is within the
sound discretion of the trial court and is reviewed only for a clear abuse of discretion
2
Jackson's assertion that the jurors indicated they might favor harsher penalties more
than lesser penalties for the rape charge is correct. His argument that this preference
2 Soto v . Commonwealth , 139 S .W.3d 827, 848 (Ky. 2004) ; Mills v. Commonwealth , 996
S .W.2d 473, 487 (Ky. 1999).
4
requires the trial court to dismiss jurors 40 and 74,3 however, is unfounded . A
defendant's right to a fair trial does not require the excusal of jurors who favor severe
penalties. Rather, it requires only that the juror be willing to consider the full range of
penalties . 4 This court has unanimously rejected per se disqualification of jurors "merely
because a juror does not instantly embrace every legal concept presented during voir
dire examination ." 5 In the instant case, both jurors said they would consider the full
spectrum of penalties, regardless of their preferences for harsher penalties . This is all
we require . 6
Jackson supports his position that the jurors should have been excused
for cause by arguing that they were "rehabilitated ."' But after carefully reviewing the
record, we cannot agree . Neither juror indicated that they had formed opinions as to
Jackson's guilt. $ The trial court did not attempt to cleanse preconceived biases with a
"magic question ." 9 Instead, the jurors merely stated that they would probably favor
more stringent penalties for the rape charge . They did not state that this preference
would force them to automatically rule out lesser penalties . Because neither juror
indicated that he or she would be unable to entertain the full range of penalties, the trial
court was not required to excuse either. As a result, the trial court's questioning of the
'
See Shields v. Commonwealth , 812 S.W .2d 152, 153 (Ky. 1991) ("In order to be
qualified to sit as a juror in a criminal case, a member of the venire must be able to
consider any permissible punishment .") .
4 Soto , 139 S .W .3d at 849; Hodge v. Commonwealth , 17 S .W .3d 824, 837 (Ky. 2000).
5 Mabe v. Commonwealth , 884 S .W .2d 668, 671 (Ky. 1994).
' See
Soto , 139 S .W .3d 827, 849-50 ; Hodge , 17 S .W .3d at 837-38 .
' See Montgomery v. Commonwealth , 819 S.W .2d 713, 717 (Ky. 1991) (holding that
jurors who would otherwise be excused because of their partiality may not be
rehabilitated by a "magic question") .
' See id . (concluding that if a juror indicates she has developed an opinion as to the
defendant's guilt based on pre-trial publicity, that juror may not be "rehabilitated" by a
"magic question" that asks if she can put aside this opinion) .
9 See , e.g . , id .
jurors cannot be termed "rehabilitory". Accordingly, the trial court did not abuse its
discretion in overruling Jackson's motions to excuse for cause.
In his second argument for reversal, Jackson submits that the trial court
erred in admitting evidence of other crimes in violation of KRE 404(b) . Jackson
contends that the admissibility of this evidence constitutes a violation of his due process
rights guaranteed by state and federal law . This issue is properly preserved by
Jackson's pre-trial objection to the KRE 404(b) evidence and his renewed objection to
that evidence at trial . As a result, we review for reversible error.
The relevant portion of KRE 404(b) reads:
Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is inadmissible to prove the character of a
person in order to show action in conformity therewith . It
may, however, be admissible :
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accidence ; or
(2) If so inextricably intertwined with other evidence essential
to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party .
This court has long interpreted KRE 404(b) and the preceding rules governing other
crimes evidence as exclusionary in nature .' ° This construction is justified by the danger
of prejudice to the defendant inherent in evidence of other crimes. Specifically, there is
a concern that evidence of other crimes or bad acts may lead the jury to convict a
defendant because of poor character or a criminal predisposition ." As a result,
" See Bell v. Commonwealth , 875 S.W.2d 882, 889 (Ky . 1994) ("[T]he thrust of KRE
°
404(b) has always been interpreted as exclusionary in nature .); Jones v.
Commonwealth , 303 Ky. 666, 198 S .W .2d 969, 970 (1947) ("[E]vidence that a
defendant on trial had committed other offenses is never admissible unless it comes
within certain exceptions, which are well-defined in the rule itself.") .
" See Bell, 875 S .W.2d at 889 .
6
evidence of other crimes or bad acts will only be admissible if there is an applicable
exception to the general rule of exclusion and if the evidence's probative value
outweighs its prejudicial effect .
12
The Commonwealth has the burden of showing the applicability of an
exception and establishing that the probative qualities of the evidence outweigh any of
its inflammatory effects.
13
In the case at bar, the Commonwealth argues that the other
crimes evidence is admissible under KRE 404(b) as evidence of "signature crimes ."
Although KRE 404(b)(1), which is classified as "illustrative rather than exhaustive,"
14
fails to enumerate this exception, Kentucky law allows for the introduction of "evidence
of other bad acts to prove a common scheme or plan" if it is "so similar to the charged
offense that it constitutes a `signature crime ."'
15
In determining whether prior crimes constitute "signature crimes," "this
Court has placed emphasis upon common facts, and has held that the facts of the prior
bad acts must be so similar as to indicate a reasonable probability that the acts were
committed by the same person
.",s
In other words, the evidence of the other crimes
must be relevant for some purpose other than to prove the criminal disposition of the
defendant, and it must be sufficiently probative of the defendant's commission of the
other crimes .'
,2
Id .
Daniel v. Commonwealth , 905 S .W .2d 76, 78 (Ky. 1995).
'4
Barth v. Commonwealth , 80 S .W .3d 390, 403 (Ky. 2001) ("It is hardly worth repeating
that this list of permissible purposes is illustrative rather than exhaustive .").
15
Commonwealth v. Maddox , 955 S .W .2d 718, 722 (Ky. 1997) (quoting Rearick v.
Commonwealth , 858 S.W .2d 185 (Ky. 1993)) .
,s _Id
.
" See Bell v. Commonwealth , 875 S.W .2d 882, 889 (Ky. 1994) (outlining a threepronged inquiry to determine the admissibility of KRE 404(b) evidence) .
7
13
There are a number of factual similarities between the Tennessee crimes
and the charged crimes . Between June 5, 2000, and October 9, 2000, eight
Blockbuster Video stores were robbed, five in the Nashville area and three in Bowling
Green . Witnesses to each robbery testified that the perpetrator was an AfricanAmerican male and wore either camouflage or dark clothing, a ski mask and glasses.
He surprised the store clerks as they were closing the store at the end of their shifts .
The perpetrator used a small chrome or silver gun and ordered the employees to not
look at his face . He routinely commanded the employees to turn off the store alarm and
refrain from pushing the panic button . The employees were ordered to open the store
safe and place its contents in a bag the perpetrator brought with him . The perpetrator
asked for the store security tapes at each robbery. After this, the robber ordered the
employees into a room and told them not to leave.
Female employees were working at three of the stores . During each of
these robberies, two of which occurred in Bowling Green, the perpetrator ordered one of
the female employees to take off her clothes and lie down . In each instance, he then
inserted the barrel of his gun in each woman's vagina .
These facts show a striking similarity between the Tennessee robberies
and the charged crimes. The modus operandi is the same, the target (Blockbuster
Video) is the same, and the robberies occurred during the same period of time.
Accordingly, the evidence is relevant for some reason other than to show the
defendant's criminal disposition . From the evidence that Jackson committed the
Tennessee robberies and that the modus operandi for the Tennessee robberies was
strikingly similar to the Bowling Green robberies, a juror can draw the inference that
Jackson committed the charged crimes.
There can be little question about the probativeness of the evidence .
Tennessee law enforcement officials apprehended Jackson at the scene of the eighth
and final robbery. He pled guilty to that crime and to raping a female employee during
the course of the robbery. During the investigation of that crime, Jackson confessed to
two of the other Nashville-area robberies. Although the defendant did not confess to the
two other Tennessee robberies, their modus operandi "is so similar and so unique as to
indicate a reasonable probability that the crimes were committed by the same
person ." 18
With the relevancy and probativeness tests satisfied, our inquiry is now
whether the potential for prejudice from the use of the other crimes evidence
substantially outweighs its probative value. ' 9 The balancing of the probative value of
the other crimes evidence against the potential for undue prejudice is reserved to the
sound discretion of the trial court and will not be disturbed on appeal absent a showing
of abuse.
Jackson attacks the Commonwealth's decision to introduce evidence of
five of the six Tennessee robberies before introducing any evidence of the charged
crimes . Citing Mack v. Commonwealth , he argues that evidence of the charged crimes
should have been presented first and that this order of proof "invites prejudicial error. ,21
However, the cited portion of that opinion was merely advisory because the case was
'8
Adcock v. Commonwealth , 702 S .W.2d 440, 443 (Ky . 1986).
Bell , 875 S .W.2d at 890.
Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999).
2'
860 S.W.2d 275, 278 ("That order of proof invites prejudicial error by precluding the
trial court from judging the admissibility of the prior-acts evidence according to its
degree of similarity to evidence introduced on the present charge .").
9
'9
2°
reversed and remanded on other grounds . The opinion is not considered binding on
the order of proof for 404(b) evidence .
The issue addressed in the portion of Mack cited in Jackson's brief is the
need for the trial court to confirm that a proper foundation has been established for the
introduction of prior crimes evidence . 24 One way to do this, of course, is to require the
Commonwealth to introduce evidence of the charged crimes first. This requirement is
unnecessary, however, if the trial court is satisfied that a proper foundation exists . Such
was the scenario in the instant case. The record indicates that the trial court carefully
considered evidence of the charged crimes and the Tennessee crimes. At the
beginning of the trial, Jackson asked the trial court to reconsider its pre-trial decision to
admit the 404(b) evidence . The trial court overruled the objection stating, "In my tenure
on the bench, I've never encountered any closer to `signature crimes' than those
described in this set of facts." Accordingly, the trial court's decision to allow the
Commonwealth to present evidence of the Tennessee robberies was not an abuse of
discretion .
The judgment of the Warren Circuit Court is affirmed .
All concur.
Id .
R. Lawson, The Kentucky
Evidence Law Handbook , § 2 .25[3][b], at 128 (4th ed .
LexisNexis 2003) ("The Kentucky Supreme Court has not spoken to the issue of when
such evidence may be introduced, which means that trial courts must determine if
issues are genuinely in dispute without benefit or hindrance of rigid rules . . . .").
24
Mack, 860 S .W.2d at 278 ("Those portions were fortuitously harmless, but their
erroneous admission demonstrates the necessity of providing a proper foundation for
such evidence .").
10
22
23
COUNSEL FOR APPELLANT:
Shelly R . Fears
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
Susan Roncarti Lenz
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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