MARK CUZICK V. COMMONWEALTH OF KENTUCKY
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2007-SC-000466-MR
APPELLANT
MARK CUZICK
V
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
NO . 07-CR-00041
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
Appellant, Mark Cuzick, was convicted by a Jessamine County jury
of first-degree fleeing and evading, resisting arrest, operating a motor
vehicle under the influence, and of being a persistent felony offender.
For these crimes, Appellant was sentenced to twenty (20) years
imprisonment. He now appeals his judgment and conviction as a matter
of right, pursuant to Ky. Const . ยง 110(2)(b) .
Appellant raises four principal allegations of error in the
underlying proceeding, to wit: 1) that impermissible testimony was
introduced during the sentencing phase of trial; 2) the trial court
erroneously permitted narrative testimony to accompany the videos of
the police chase ; 3) the introduction of the two police chase videos was
cumulative and substantially prejudiced Appellant ; and 4) the
Commonwealth was impermissibly allowed to define reasonable doubt
during voir dire . For the following reasons, we find Appellant's
arguments unpersuasive and, thus, affirm the trial court's convictions
and sentence.
I.
BACKGROUND
Nicholasville police officer Bradley Sapp was driving in a marked
police car on December 16, 2006, when he observed Appellant's car turn
south into a northbound lane of traffic, driving the wrong direction . The
car came directly at Sapp who veered into the opposite lane to avoid it.
Sapp, who was off-duty at the time, turned on his lights, turned on the
in-car camera, and began pursuit of Appellant .
Sapp caught up with Appellant, who stopped while still facing
against oncoming traffic, and pulled behind him . As Sapp exited his
vehicle and began to approach Appellant's car, Appellant sped away into
oncoming traffic. Sapp resumed pursuit, traveling parallel to Appellant
in the correct lane and with a spotlight trained on Appellant's car.
Officer Jason Faddasio and Corporal Michael Fleming responded to
Sapp's radio request for assistance . As Fleming arrived in the vicinity, he
saw Appellant driving toward him in the wrong lane . Appellant then cut
across a steep grass median. All three patrol cars fell in line in a highspeed chase of Appellant . The pursuit continued for approximately three
to four miles and reached speeds in excess of eighty-five (85) miles per
hour, during which time Appellant was driving erratically and weaving
from side to side .
Sapp attempted to execute a "rolling roadblock" maneuver on
Appellant, whereby he positioned his cruiser in front of Appellant and
applied the brakes, attempting to slow his vehicle . Appellant, however,
veered around Sapp and sped past.
Appellant's automobile eventually began to smoke from beneath
the hood, whereupon he coasted to a halt at a red light in the emergency
lane. The three officers then exited their cars with guns drawn and
approached Appellant's car, ordering him to exit the vehicle . Appellant
was on his cell phone at the time and ignored the officers' orders . They
ordered Appellant to exit the vehicle three to four more times, and when
he would not comply, the officers forcibly removed him from the car. I
While they were doing so, the officers noticed a strong smell of alcohol.
Appellant continued to resist the officers, struggling with them on the
ground as they attempted to handcuff him.
Appellant was subsequently arrested, charged and tried by a
Jessamine County jury. He was found guilty of fleeing/ evading police,
resisting arrest, driving under the influence and of being a first-degree
persistent felony offender, and sentenced to twenty (20) years
imprisonment .
II .
ANALYSIS
1 It should be noted that although Appellant was nearly deaf and relied
on a hearing aid to hear, after officers first ordered him to exit he responded, "I
just want to call somebody ."
3
A.
Evidence of Prior Burglary Conviction Did Not Exceed Scope of
Truth in Sentencing Statute.
In his first allegation of error, Appellant argues that the trial court
erred by allowing the Commonwealth to read to the jury, from a 1993
uniform citation, the substance of a prior burglary conviction . Appellant
claims that by reading the description of the offense, and in particular
mentioning that Appellant used a baseball bat to break the glass on the
front door of a commercial building to gain entry, the Commonwealth
exceeded the scope of KRS 532 .055 . Appellant further alleges that this
information infringed upon his due process rights and necessitates a new
sentencing hearing . We disagree for reasons that the testimony was
merely a general description of the nature of the prior crime, as
permitted by the statute .
During his sentencing phase, the Commonwealth introduced a
1993 uniform citation, among others, as a penalty phase exhibit for the
purposes of establishing Appellant as a persistent felony offender. In so
doing, the Commonwealth read the following from the citation : "1993
burglary third. Fayette County. Subject utilized a baseball bat. Broke
the glass of the front door of Autosound in Lexington and took several
items of value . Used force to enter a business and steal from that
business." Appellant argues that by disclosing this information, the
Commonwealth went beyond describing the "nature" of the offense as
permitted in KRS 532 .055.
KRS 532 .055(2)(a)(2) allows the Commonwealth to introduce
relevant evidence of "[t]he nature of prior offenses for which he was
convicted" during sentencing. This Court has held that the type of
evidence which may be admitted during the persistent felony offender
stage of a bifurcated trial should serve to establish the elements
necessary for demonstrating the statutory requirements of being a
persistent felony offender. Pace v. Commonwealth, 636 S.W.2d 887, 890
(Ky. 1982) (overruled on other grounds by Commonwealth v. Harrell, 3
S .W.3d 349 (Ky . 1999)) .
We have routinely noted that the Commonwealth's Truth in
Sentencing statute has the overriding purpose of providing the jury with
information relevant to delivering an appropriate sentence. See, e .g.
Williams v . Commonwealth, 810 S . W.2d 511, 513 (Ky. 1991) . In that
vein, we have held that, generally, this goal can be accomplished while
limiting the description of the "nature of a prior conviction" to a "general
description of the crime." Robinson v. Commonwealth, 926 S .W.2d 853,
855 (Ky. 1996) .
In Robinson , the Court, by way of demonstration, points to
Williams "[a] s an example of the type of evidence that would be
admissible . . . [and] would be the right type of evidence" for
demonstrating the "nature" of the prior offense . Robinson , 926 S .W.2d
at 855 . 2 Robinson notes that in Williams, the defendant "was asked
2 For purposes of determining what "nature" means, Robinson
announces, "[w]e will look to the definition of `nature' found in Black's Law
5
during sentencing whether he had been convicted of `beating [his] wife
up .' Id . (quoting Williams, 810 S.W .2d at 513) . In what Robinson
termed a proper example, the "prosecutor then read the complaint to the
jury." Id . (emphasis added) . This is no different than the prosecutor
reading from the citation that Appellant, here, used a bat to break in the
glass of a business's door.
Rejecting the proposition of establishing a bright line rule as to
what the permissible limits of a "general description" should be, we have
held that excessive and protracted testimony which attempts to retry the
prior crimes will not be allowed. See id. at 854-855 (finding error where
the victim of a prior crime was permitted to testify extensively and at
length concerning her injuries and the circumstances surrounding the
crime) ; see also Pace, 636 S .W.2d at 890 (findi ng error when
Commonwealth introduced extensive testimony and "gruesome facts"
about prior felonies and also introduced irrelevant physical evidence
during sentencing) ; Hudson v. Commonwealth, 979 S.W .2d 106, 110 (Ky.
1998) (finding error when testimony elicited went beyond a reading of
convictions, dates, and sentences and went into factual testimony
obtained from warrants, etc., going beyond the nature of the conviction
as set forth in Robinson , but see Brooks v . Commonwealth , 113 S .W.3d
818, 824-825 (Ky. 2003) (permitting admission of records such as a
criminal complaint pertaining to misdemeanor convictions and testimony
of parole officer during sentencing) .
Dictionary, 1027 (6th ed. 1990) : `kind, sort, type, order; general character.'
Nature, then, is more generic than specific ." Id.
6
Given this Court's endorsement of the theory of an enlightened and
well-informed jury in evaluating proper penalties, Mabe v.
Commonwealth , 884 S .W.2d 668 , 672 (Ky. 1994), and the General
Assembly's intent in ensuring an enlightened jury through KRS 532.055,
the Truth in Sentencing statute, Boone v. Commonwealth, 780 S.W .2d
615, 616 (Ky. 1989) (quoting Commonwealth v . Reneer, 734 S.W.2d 794,
797 (Ky. 1987)), it would seem both counterproductive and illogical to
hold that any recitation of facts from the offense is disallowed in
describing the general nature of the prior crime. Here, the
Commonwealth's description of the nature of the prior offense was
limited solely to the information contained on the citation, namely that
Appellant utilized a bat to commit the breaking aspect of the burglary .
We do not believe such information runs afoul of even the most stringent
and limited interpretations of our intent to keep prior convictions from
being retried during the penalty phase.
As a cautionary note we add that, by upholding the admissibility of
the information contained on the citation in this case, we do not create a
rule that the contents of a citation or other charging document are
always admissible during penalty phase. We know that such documents
may contain inaccurate or misleading information, as well as information
inconsistent with the final judgment . So long as the information is
limited to a fair, accurate and general description of the nature of the
prior offense, it comports with KRS 532 .055 and may be considered by
the jury. Here, the testimony, merely served to provide a general
7
description of the nature of the prior offense as permitted by KRS
532 .055(2)(a)(2) . See Robinson , 926 S.W .3d at 855 .
Contrary to the dissent's assertion, Hudson does not announce a
bright line rule and we have no intention of overruling any part of it.
Indeed, this Court has consistently rejected formulating a bright line
rule, opting instead for the more workable flexibility of the rule
announced in Robinson , which is that it is permissible to offer a general
description of the nature of the prior conviction .
Nor, as the dissent suggests, does Hudson offer up a. blanket
prohibition of reading from warrants or citations. In fact, all that is clear
from the very scant description of the offending testimony in that
instance is that it "was clearly beyond the limitation set forth in
Robinson ." Hudson, 979 S.W.2d at 110. Hudson plainly defers to the
rule announced in Robinson and so shall we here. There was no error.
B.
Narration of the Police Chase Videos.
Appellant's next argument, which is unpreserved, is that the trial
court should not have allowed two police officers to narrate videos played
during their trial testimony - the substance of the videos having been
captured from cameras mounted in their cruisers depicting the highspeed pursuit of Appellant as he attempted to flee . Appellant alleges that
by supplementing the playing of the video tapes at court with narrative
testimony his due process rights were denied and thus his conviction
must be reversed. We disagree .
At trial, police officer Michael Fleming was called as a witness to
testify. During his testimony, a video was played showing the pursuit of
Appellant as he attempted to flee from officers after being stopped . In
large part, Fleming's testimony consisted of narrative responses to the
Commonwealth's questions, with the purpose of describing the images
on the video from his perspective as they happened . Additionally,
Fleming answered questions concerning the location of the chase, what
various symbols which appeared on the cruiser's in-car camera meant,
and what procedures the officer was employing to stop Appellant's
vehicle.
Likewise, Officer Bradley Sapp testified in much the same manner.
However, the focus of Sapp's testimony was from the perspective of the
video obtained from his cruiser's camera and events relevant to his
pursuit . The substance of his testimony highlighted a bumper to
bumper incident, which was not on the video tape, and followed a similar
question and answer format describing the events taking place on the
video . It is significant to note, however, that every statement by both
Fleming and Sapp was in direct response to a question asked by the
Commonwealth and was describing the actions as they perceived them at
the time of the chase.
Appellant points out that no Kentucky case law directly addresses
whether an officer can narrate audible video tapes . However, we find
that this Court's prior rulings concerning crime scene videos and
inaudible tapes lend guidance to the issue .
9
In Mills v . Commonwealth, 996 S.W .2d 473 (Ky. 1999), we
addressed the issue of whether a police officer's narrative testimony
during the playing of a crime scene video was improper lay testimony.
We determined, in Mills, that the proper query for such narrative
testimony was whether it complied with KRE 701 and KRE 602 . KRE
701 limits testimony by a witness not testifying as an expert to matters
"(a) [r]ationally based on the perception of the witness," and "(b) [h]elpful
to a clear understanding of the witness' testimony or the determination
of a fact in issue ." Moreover, KRE 602 further refines the scope of
permissible lay opinion testimony, limiting it to matters of which the
witness has personal knowledge. Thus, reading these two requirements
in conjunction, we determined that the narration of the video was proper
because it "comprised opinions and inferences that were rationally based
on [the officer's] own perceptions of which he had personal knowledge"
and "was helpful to the jury in evaluating the images displayed on the
videotape ." Mills , 996 S .W .2d at 488 .
Additionally, we have allowed narrative testimony from in court
witnesses providing "simultaneous commentary" of crime scene video,
see Milburn v . Commonwealth , 788 S .W.2d 253, 257 (Ky. 1:989), whereas
we have found error in pre-recorded narrative video when such narration
contained inadmissible hearsay. See Fields v. Commonwealth , 12
S .W.3d 275, 280 (Ky. 2000) . Thus, the common thread uniting our
decisions on narrative-style testimony of audio and video evidence is that
such testimony, like any other, must comport with the rules of evidence.
10
Therefore, the fulcrum of the matter upon which this issue turns,
is whether the witness has testified from personal knowledge and
rational observation of events perceived and whether such information is
helpful to the jury. In short, does the testimony comply with the rules of
evidence? While a witness may proffer narrative testimony within the
permissible confines of the rules of evidence, we have held he may not
"interpret" audio or video evidence, as such testimony invades the
province of the jury, whose job is to make determinations of fact based
upon the evidence . See Gordon v. Commonwealth , 916 S.W.2d 176, 180
(Ky. 1995) (finding error when witness was allowed to offer testimony
interpreting a poor quality audio tape of an undercover drug buy that
was substantially inaudible, rather than simply testifying as to his
recollection) .
Turning to the complained-of testimony at hand, Appellant has
made no specific protest as to any particular portions of Officer Fleming
or Officer Sapp's testimony. Here, the videos in question depicted the
substance of a high-speed police chase, as captured from the in-car
cameras . It is completely reasonable to conclude that the officers'
testimony was not only beneficial to the jury in discerning what was
happening on the video, but was in all likelihood necessary. See Mills ,
996 S .W .2d at 488 . Moreover, and importantly, the officers' testimony
did not interpret the video . Cf. Gordon , 916 S .W.2d at 180. While the
testimony was narrative in the sense that it sequentially followed the
chronology of the tape, all statements were responsive in nature and
11
were in answer to the Commonwealth's questions . Narrative testimony is
not necessarily interpretive testimony per se. Here, the testimony was
explicative of the officers' perception of the events occurring on the video
as they perceived them during the police chase and provided further
elucidation of matters of police procedure, etc., which were not readily
identifiable from the video standing on its own. Thus, having reviewed
the record and determined that the testimony was proper lay opinion
testimony which was beneficial to the jury, we find no palpable error.
C.
Admission of the Police Chase Videos Was Not Cumulative or
Prejudicial.
Appellant next argues, for the first time on appeal, that in playing
both police chase videos at trial, the trial court committed reversible
error, as the videos were cumulative and caused undue delay. Because,
as we have already noted, we believe that the videos and accompanying
testimony were germane to the Commonwealth's pursuit of its
prosecution and, thus, were neither cumulative nor overly prejudicial,
and for reasons that Appellant did not object to the presentation of the
videos at trial, we find no palpable error under RCr 10 .26 .
Appellant claims that playing both police chase videos did nothing
more than "pile on" duplicative evidence . We disagree . Here, Officer
Sapp was the lead car in the high speed pursuit of Appellant. Thus, the
images captured from his camera highlight critical information and detail
pertinent to the crimes charged . Likewise, the video obtained from
Officer Fleming's car contained footage capturing maneuvers attempted
12
by Officer Sapp, and other information uniquely available from the
perspective of the last car in the pack chasing Appellant . Further,
during the period of time in which Sapp's car was in front of Appellant's
car, Fleming's video is the only one depicting the pursuit.
Determinations as to the admission and exclusion of evidence are
a matter of trial court discretion . Woodard v. Commonwealth, 147
S.W.3d 63, 67 (Ky. 2004) . Upon review, we will not overturn a trial
judge's evidentiary determinations unless his decision was "arbitrary,
unreasonable, or unsupported by sound legal principles."
Commonwealth v. English , 993 S .W.2d 941, 945 (Ky. 1999) .
In conducting the KRE 403 balancing test, trial judges are afforded
substantial discretion . See Commonwealth v. Brock, 947 S .W.2d 24, 29
(Ky. 1997) . Here, as noted, the videos were relevant and the trial judge,
as was his legal prerogative, determined that their probative value
outweighed any concerns of cumulative evidence or undue delay. See
KRE 401 ; KRE 403 . Because Appellant points to no specific harm
suffered from the presentation of the videos - other than a hollow
argument asserting prejudice since Appellant received the maximum
sentence - and because we can find nothing in the record, or otherwise,
to indicate that the trial judge's determination was an abuse of
discretion, arbitrary or unsupported by sound legal principles, we cannot
find palpable error where none exi sts
D.
Defining Reasonable Doubt.
13
Lastly, Appellant argues that the Commonwealth impermissibly
defined reasonable doubt during the selection of the jury. As with
Appellant's prior arguments, this issue is unpreserved and will be
reviewed under the palpable error standard, RCr 10 .26 . Again, Appellant
alleges that his conviction should be reversed. We disagree .
During voir dire, the Commonwealth addressed the jury in the
following manner :
We have to prove our case beyond a reasonable doubt. So in
order to get a conviction, we have to prove each and every
element of each and every charged offense beyond a
reasonable doubt. Now, would you all as jurors agree to
hold us to that burden and that burden only? To make us
prove our case beyond a reasonable doubt and not beyond
all shadow of a doubt or not by a mathematical certainty?
RCr 9 .56 sets forth the proposition that the jury should not be
instructed as to the definition of reasonable doubt. In Commonwealth v.
Callahan , 675 S .W.2d 391, 393 (Ky. 1984), this Court extended this well
settled prohibition of defining reasonable doubt to all points in a trial's
proceedings . In Johnson v. Commonwealth, 184 S.W .3d 544, 549-550
(Ky . 2005), we reexamined Callahan's prohibition of defining reasonable
doubt and determined, under the facts in that instance wherein the
Commonwealth attempted to indicate what reasonable doubt was not,
error, if any existed, was harmless .
The Commonwealth, in Johnson , 184 S .W .3d at 548-549,
indicated to the jury in a colloquy during voir dire that reasonable doubt
was not the same thing as "beyond a shadow of a doubt," and that the
prosecution did not have to prove anything beyond a shadow of a doubt.
14
To that end, we recognized, "in the very case that announced the
prohibition against defining reasonable doubt [Callahan], we held that
the prosecutor's allegedly improper statement, which, at most, attempted
to show what reasonable doubt was not, did not amount to a violation of
the rule against defining `reasonable doubt .' Johnson, 184 S .W.3d at
549. (emphasis in original) .
More significantly, however, Johnson squarely addressed whether
alleged impermissible attempts to define reasonable doubt could be
subject to harmless error analysis . Appellant now argues that such error
can never be harmless . However, this Court's pronouncement in
Johnson, in that regard, was clear: while we fundamentally upheld our
prior decisions in Callahan and its progeny, we rejected the notion that
any such error in defining reasonable doubt was per se prejudicial and
not subject to harmless error analysis . See id. at 550-551 . "[E]ven if one
is convinced that the statement by the prosecutor in this case
constituted error, that error was harmless . We have applied harmless
error on this precise issue, even in capital murder cases, each time
affirming a conviction and sentence of death." Id. at 550 ; see also
Sanders v. Commonwealth, 801 S .W.2d 665, 671 (Ky. 1990) ; Caudill v.
Commonwealth, 120 S .W.3d 635 (Ky. 2003) ; Howell v. Commonwealth ,
163 S.W.3d 442, 447 (Ky. 2005) .
Thus, despite Appellant's contention that a violation of Callahan
should not be subject to harmless error analysis (and Johnson should be
overruled), we are unpersuaded. Appellant offers no legitimate argument
15
for this conclusion and merely cites to Justice Cooper's dissent for this
proposition . However, a majority of the Court considered Justice
Cooper's well-reasoned argument at that time and concluded otherwise.
We would be remiss to so freely ignore the doctrine of stare decisis and
reach a contrary decision here today.
Turning to the complained of statement at hand, it must be noted
that Appellant's claim of error is unpreserved. Even Justice Cooper, in
his dissent, was quick to draw a distinction between preserved and
unpreserved error as it pertained to alleged attempts at defining
reasonable doubt. See Johnson, 184 S.W.3d at 555 (Cooper, J.,
dissenting) . ("Unlike the case sub judice, there was not a
contemporaneous objection to the prosecutor's discussion of the
meaning of reasonable doubt in either Caudill or Sanders .") . Indeed, we
have recently held that a prosecutor's comment that "beyond a
reasonable doubt was not equivalent to beyond all doubt" did not rise to
palpable error . Brooks v. Commonwealth, 217 S.W .3d 219, 225 (Ky.
2007) ; see also Rice v. Commonwealth , No . 2004-SC-1076-MR, 2006 WL
436123, at *7 (Ky. Feb . 23, 2006) ("Truthfully pointing out that a `shadow
of doubt' is different from `beyond a reasonable doubt' is not an attempt
to define reasonable doubt. Using examples, however, to point out what
is, or is not, reasonable doubt, is.") . Thus, we find no palpable error
here.
III.
CONCLUSION
Accordingly, for the foregoing reasons, we hereby affirm Appellant's
conviction and sentence.
All sitting. Venters, J., concurs. Cunningham, J ., concurs in
result only by separate opinion, with Schroder, J., joining that opinion.
Noble, J ., concurs in part and dissents in part by separate opinion, with
Minton C.J. ; and Abramson, J ., joining that opinion.
COUNSEL FOR APPELLANT:
Euva D. May
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
David Bryan Abner
Assistant Attorney General
Office of the Attorney General
Office of the Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : JANUARY 22, 2009
TO BE PUBLISHED
,vuyrrmt (~Vurf of ~irufurhv
LQZ
2007-SC-000466-MR
MARK CUZICK
V
APPELLANT
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C . HUNTER DAUGHERTY, JUDGE
NO . 07-CR-000041
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE CUNNINGHAM
CONCURRING IN RESULT ONLY
I concur in Justice Scott's very well-written opinion, but share the
concerns expressed in the dissent of Justice Noble. As Justice Scott points
out, neither Hudson nor Robinson establish a bright line rule as to what can be
included in describing the "nature" of a previous conviction . These cases make
clear, however, that there is a limit and, accordingly, prosecutors should tread
lightly . I simply do not believe that describing a burglary as forced entry while
using a baseball bat crosses the line as to be prejudicial. When considering a
burglary offense, the jury could certainly imagine a much more menacing
means of forced entry which might make the use of a common baseball bat
comparatively innocuous. Any deviation from Hudson and Robinson which
may have occurred here, if error, was harmless .
Schroder, J ., joins this opinion.
RENDERED : JANUARY 22, 2009
TO BE PUBLISHED
Q
AT
,;VUyrrM,r VjVurf
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2007-SC-000466-MR
MARK CUZICK
V
APPELLANT
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C . HUNTER DAUGHTERY, JUDGE
NO . 07-CR-00041
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE NOBLE
CONCURRING IN PART AND DISSENTING IN PART
Respectfully, I dissent with the majority view that it was appropriate to
read the contents of the citation, which stated "1993 burglary third . Fayette
County. Subject utilized a baseball bat . Broke the glass of the front door of
Autosound in Lexington and took several items of value. Used force to enter a
business and steal from that business." This statement goes far beyond what
this Court has previously held to be acceptable when listing prior convictions
in truth in sentencing . Specifically, in Hudson v. Commonwealth, 979 S .W.2d
106 (Ky. 1998), a case which cites Robinson v. Commonwealth, 926 S .W .2d
853 (Ky. 1996), this Court held as follows : "In addition to reading the
convictions, dates, and sentences, the supervisor read information regarding
the factual circumstances of each conviction from the warrants or uniform
citations . The amount of information heard by the jury was clearly beyond the
limitation set forth in Robinson , and therefore, should not have been
admitted." That was exactly the case here. Then, as now, the witness did
nothing more than read the entire warrants or citations .
In Robinson , this Court noted that the purpose of truth in sentencing in
regard to a persistent felony offender (PFO) conviction was simply to inform the
jury that the defendant had prior convictions, and what their general nature
was, so that the jury could determine whether the defendant had the status of
a persistent felon . In making this rule, the Court balanced the unduly
prejudicial nature of detailing previous offenses with the information necessary
to obtain a PFO conviction . Since PFO is a status which allows for the
enhancement of the sentence in a case that has just been tried, the Court was
acutely aware that how the prior offenses occurred was not information
necessary to the determination that they had occurred, and that those details
could result in punishment aimed at those offenses rather than in merely
establishing a status . The Court determined that merely stating the general
nature of the offenses would suffice to allow the jury to fix the penalty within
the appropriate enhanced penalty range without potential inflammatory
influence . Thus, it has been the law in Kentucky for the last ten years that it is
inappropriate to read the entire contents of a warrant or citation to the jury
during the sentencing phase .
Without explicitly saying it, the majority is essentially overruling Hudson
and is inviting this kind of testimony henceforth. The majority's view is that
what was read is truthful, and was limited solely to the information contained
on the citation . This, however, is precisely what Hudson forbids . Based on
this, how can a witness guess when he or she has read too much? The
majority blurs what was previously a bright line rule.
Appellant was drunk and ran away from the police. He was obviously a
risk to other drivers, pedestrians, and property. However, his underlying
offenses carry a maximum sentence of five years . The jury decided to sentence
him to the maximum sentence possible under the PFO First enhancement,
twenty years . It is certainly arguable that the implied violence of using a
baseball bat to knock in the door of a local business, a business which may
have employed some of the jurors or at the very least been known to the others,
since it was not disclosed in voir dire, could have inflamed the jury . This kind
of potential prejudice would have been avoided if the conviction and sentence
for burglary was all that was read to the jury, which is all a plain reading of
Hudson allows .
Consequently, I would reverse and remand for
a new sentencing hearing
as this Court did in Hudson .
Minton, C .J . ; Abramson, J., join this opinion, concurring in part and
dissenting in part.
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