WILLIAM SANDERS V. COMMONWEALTH OF KENTUCKY
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MODIFIED : JANUARY 21, 2010
RENDERED : JUNE 25, 2009
TO BE PUBLISHED
,;vuyrrmr Courf of
2008-SC-000118-MR
WILLIAM SANDERS
a/a/A
APPELLANT
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C . HUNTER DAUGHERTY, JUDGE
NO . 07-CR-00131
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING, IN PART AND
REVERSING AND REMANDING, IN PART
Appellant, William Sanders, was convicted by a Jessamine Circuit
Court jury of first-degree robbery and of being a first-degree persistent
felony offender. For these crimes, Appellant received a total sentence of
22 years' imprisonment. Appellant now appeals to this Court as a matter
of right . Ky. Const. § 110(2)(b) .
Appellant asserts three arguments on appeal: (1) the trial court's
jury instruction on first-degree persistent felony offender was erroneous
because it allowed the jury to convict him of that offense based on his
conviction for possession of drug paraphernalia, second offense ; (2) the
trial court erred in not granting his request for a lesser included offense
instruction on theft by unlawful taking, value $300 or more; and (3) he
was prejudiced by the admission of a letter, which he claims was not
authenticated . For the reasons set forth herein, we now reverse
Appellant's conviction for being a first-degree persistent felony offender
and remand to the Jessamine Circuit Court for a new penalty phase trial.
We affirm Appellant's conviction for first-degree robbery.
On March 24, 2007, Appellant robbed Steven Armstrong. At trial,
Armstrong and Jennifer Sebastian testified that the robbery occurred
while the three were riding together in a car. At some point, Appellant
pulled out a knife and held it to Armstrong's throat. Once the driver,
Sebastian, stopped the car, Appellant took Armstrong's money, knife, cell
phone, and glasses . After the robbery, Appellant ordered Sebastian to
drive him to Lexington. Armstrong went to the Jessamine County
Detention Center where he reported the crime .
Appellant's testimony at trial was substantially different from that
of Armstrong and Sebastian. Appellant testified that he, Armstrong, and
Sebastian smoked crack cocaine together. Appellant further testified
that when they ran out of crack, Armstrong gave him money to purchase
more crack cocaine and took him to a house where he could obtain it.
Appellant purchased the crack cocaine but began to smoke it without
Armstrong. Armstrong became angry with Appellant for beginning to
smoke the crack without him. Appellant testified that the two had a fight
because Armstrong believed Appellant effectively stole crack cocaine from
him. Appellant believes that the robbery charges are Armstrong's
revenge for that disagreement.
I.
APPELLANT'S CONVICTION FOR PERSISTENT FELONY
OFFENDER FIRST DEGREE WAS IMPROPER BECAUSE .
IT WAS PREDICATED ON THE PRIOR OFFENSE OF
POSSESSION OF DRUG PARAPHERNALIA,
SECOND-OFFENSE .
Appellant first argues that the trial court's jury instruction for
first-degree persistent felony offender was incorrect because it allowed
the jury to convict him based on his prior conviction for possession of
drug paraphernalia, second offense . KRS 532 .080(8) clearly states that
"[n]o conviction, plea of guilty, or Alford plea to a violation of
KRS 218A.500 shall bring a defendant within the purview of or be used
as a conviction eligible for making a person a persistent felony offender."
KRS 218A.500 deals with the crime of possession of drug paraphernalia.
Appellant did not object to the jury instruction at trial.
In its brief, the Commonwealth concedes that the inclusion of
Appellant's prior conviction for possession of drug paraphernalia, second
offense, was error. However, the Commonwealth argues that the error is
harmless because evidence was presented at trial that Appellant was
convicted of four other felonies, any of which would have qualified him
for persistent felony offender status .
Our prior case law holds that it is error to convict a defendant of a
crime when the jury has not been properly instructed on the elements of
the crime. See Varble v. Commonwealth, 125 S .W.3d 246 (Ky. 2004)
(reversing defendant's conviction for manufacturing methamphetamine
because the jury had actually been instructed on the lesser offense of
possession of drug paraphernalia) ; Harper v. Commonwealth, 43 S.W .3d
.2.61
(Ky. 2001) (reversing defendant's conviction for complicity because
the jury was not instructed on the element of intent) . We noted in the
recent decision of Harp v. Commonwealth , 266 S .W.3d 813, 818 (Ky.
2008), that an erroneous jury instruction is presumed to be prejudicial;
and a party claiming such an error to be harmless bears the heavy
burden of showing that no prejudice resulted from it. While setting a
high standard for the proponent of harmless error, Harp does leave that
possibility open . Harp , however, involves true instructional error in that
the jury instructions lacked sufficient detail to permit the jury to
distinguish multiple charges from one another.
Although the arguments here are couched in terms of instructional
error, we find the problem to be one of substantive criminal law: the
legislature has expressly forbidden any conviction for persistent felony
offender from using possession of drug paraphernalia as one of the
underlying offenses . That is exactly what happened here . The wording
of the jury instruction, on its face, is fine. The problem is that the crime
of first-degree persistent felony offender cannot be established by proving
a prior conviction under KRS 218A .500 . The General Assembly has
clearly and unequivocally decided that a persistent felony offender
conviction shall not be based upon a prior violation of KRS 218A.500.
The Commonwealth argues that because the evidence at trial
proved four other prior felony convictions, any two of which would
support a conviction for first-degree persistent felony offender, the error
was harmless : Despite the apparent credibility of the evidence of prior
convictions, we noted in Medley v. Commonwealth , 704 S.W .2d 190 (Ky.
1985) (quoting from Adkins v. Commonwealth, 647 S.W.2d 502, 506
(Ky .App . 1982)), that in a persistent felony offender case, "[a] jury is
entitled to disbelieve evidence of prior convictions put on by the
Commonwealth ." We cannot presume, therefore, that the specific prior
offenses enumerated in the instruction made no difference to the jury.
Furthermore, KRS 532 .080, the statute that defines the offense of
persistent felony offender, expressly forbids a conviction for persistent
felony offender to be based on a violation of KRS 218A.500. The
conviction obtained in this case directly violates the statute that defines
the crime itself and cannot stand . Because (1) the PFO conviction is
improperly predicated on a crime expressly excluded from PFO
considerations by statute ; (2) the presumption that errors in jury
instructions are prejudicial; and (3) the fact that Sanders was, in fact,
convicted of being a first-degree persistent felony offender and received
more than the minimum sentence for that offense, the error is palpable
error, and Sanders is entitled to relief despite his lack of preservation of
this issue . See RCr 10 .26. So we reverse the Appellant's conviction for
being a first-degree persistent felony offender and remand this matter to
the Jessamine Circuit Court for a new penalty phase trial.'
II . THE EVIDENCE DID NOT SUPPORT A JURY
INSTRUCTION ON THE LESSER INCLUDED
OFFENSE OF THEFT BY UNLAWFUL TAKING,
VALUE$300OR MORE .
Appellant next argues that he should have received a jury
instruction on the offense of theft by unlawful taking, value of $300 or
more, as a lesser-included offense to first-degree robbery. See Roark v.
Commonwealth , 90 S.W.3d 24, 38 (Ky. 2002) (holding that theft by
unlawful taking is a lesser included offense of robbery) . Appellant
tendered such an instruction, but it was not given to the jury. Appellant
believes he was entitled to such an instruction because a jury could have
believed that Appellant took Armstrong's property without using force .
"In a criminal case, it is the duty of the trial judge to prepare and
give instructions on the whole law of the case, and this rule requires
instructions applicable to every state of the case deducible or supported
to any extent by the testimony." Taylor v. Commonwealth , 995 S .W.2d
It would have been better practice for the jury to have been instructed to
return a recommended sentence on the robbery conviction before the PFO
charge and any consequent PFO-enhanced sentence. Commonwealth v.
Renee, 734 S.W.2d 794, 798 (Ky. 1987) ("If the accused is also charged as a
persistent felony offender, the penalty phase and a persistent felony offender
phase can be combined . . . and the jury in the combined bifurcated hearing
could be instructed to (1) fix a penalty on the basic charge in the indictment ;
(2) determine then whether the defendant is guilty as a persistent felony
offender, and if so ; (3) fix the enhanced penalty as a persistent felony
offender .") . On remand, the trial court should instruct the jury in
accordance with the procedure outlined in Reneer.
355, 360 (Ky. 1999) . However, the trial court has no duty to instruct on
theories of the case that are not supported by the evidence . Payne v.
Commonwealth , 656 S.W.2d 719, 721 (Ky. 1983) . The trial court's
decision not to give a jury instruction is reviewed for abuse of- discretion .
Williams v. Commonwealth, 178 S .W.3d 491, 498 (Ky. 2005) .
In this matter, the evidence did not support a jury instruction on
the offense of theft by unlawful taking, value $300 or more. Armstrong
and Sebastian testified that Appellant held a knife to Armstrong's throat
and demanded his property. Appellant testified that he did not take
Armstrong's property but that all of his charges were fabricated by
Armstrong as revenge for a drug purchase gone wrong. No testimony or
evidence was presented that Appellant took Armstrong's property without
the use of force. Thus, an instruction based on theft by unlawful taking,
value $300 or more, is unsupported by the evidence; and the trial court
did not abuse its discretion in rejecting such an instruction .
III. THE NOTE THE COMMONWEALTH ADMITTED INTO
EVIDENCE WAS ADEQUATELY AUTHENTICATED .
Finally, Appellant argues that the Commonwealth introduced a
note, purportedly authored by Appellant, into evidence without adequate
authentication . Appellant did not preserve this alleged error so we will
review it for palpable error. RCr 10 .26 . At trial, Sebastian testified that
she was given a note by a jail guard, who told her it was written by
Appellant. The note read:
Hey girl, they are trying to get me forty years over
this shit. I[l (sic) ask by anyone, he gave me the money
to buy crack and I didn't come back. That is all you
know. Dropped me at the school building, dropped him
off on Brown or something. Call Santos [Appellant's
brother] .
Sebastian then testified that she called Santos, who asked her if she was
going to testify against Appellant. Sebastian testified at trial that she did
not know what Appellant's handwriting looked like but knew the note
was from Appellant because of its contents . Appellant cross-examined
Sebastian regarding the note . When Sebastian could not answer certain
questions, Appellant requested that Sebastian produce the note.
Sebastian produced the note, and the Commonwealth moved that it be
admitted into evidence. Appellant did not object, and the trial court
admitted the note.
KRE 901(b)(4) states that authentication can occur through the :
"appearance, contents, substance, internal patterns, or other distinctive
characteristics [of the writing], taken in conjunction with circumstances."
This rule is "flexible and far-reaching" in allowing circumstantial
evidence to authenticate a writing.
HANDBOOK, § 7 .05(5)
LAWSON, THE KENTUCKY EVIDENCE LAW
(4th ed . 2003) . The burden on the proponent of
authentication is slight; only a prima facie showing of authenticity is
required. Johnson v . Commonwealth, 134 S.W .3d 563, 566 (Ky. 2004) .
Several federal cases, using FRE 901,2 provide guidance as to what types
Kentucky Rules of Evidence (KRE) 901 is based on Federal Rules of Evidence
(FRE) 901 .
of circumstantial evidence could be used to authenticate a writing.
See United States v. McGlory, 968 F.2d 309, 329-31 (3d Cir. 1992)
(allowing the authentication of a handwritten note purportedly signed by
defendant without any direct- testimony that it was the defendant's
handwriting based on where the letter was found and the contents of the
letter) ; United States v. McMahon, 938 F.2d 1501, 1508-09 (1st Cir.
1991) (authenticating a note as written by the defendant based on
testimony that he delivered it to someone else and that the letter
contained information of interest to him and the recipient) . We review
the decision of the trial court for an abuse of discretion. Johnson,
134 S .W.3d at 566 .
In this matter, there was adequate circumstantial evidence to
authenticate the writing. Sebastian testified that a prison guard gave her
the note, stating that it was written by Appellant' 3 The note included
references to the charges facing Appellant and instructions to call his
brother. When Sebastian called Appellant's brother, the brother gave her
information relating to her testimony at trial . All of these circumstantial
facts together provide adequate evidence that Appellant, in fact, did
author the note. The trial judge did not abuse his discretion in allowing
the admission of this note into evidence .
We will not determine whether Sebastian's testimony regarding the prison
guard's statements was hearsay because that issue was not raised by the
parties .
IV. CONCLUSION .
For the foregoing reasons, the judgment and sentence of the
Jessamine Circuit Court regarding the first-degree persistent felony
offender conviction is reversed;- and this matter is remanded- to the-trial
court for a new . penalty phase trial. We affirm Appellant's conviction for
first-degree robbery.
All sitting. Minton, C.J. ; Abramson, Cunningham, Noble and
Schroder, and Venters, JJ ., concur. Scott, J., concurs, in part, and
dissents, in part, by separate opinion .
SCOTT, J ., CONCURRING, IN PART, AND DISSENTING, IN PART :
Although I concur with the majority on all other issues, I must
respectfully dissent on Issue I for reasons the error was harmless . You
can never have "palpable error," if the error is - as it was here harmless . Here, four (4) other felony convictions of Appellant were in
evidence - none of which were even questioned . Thus, the fact that the
trial court erroneously used a fifth (possession of drug paraphernalia)
was plainly harmless . What I fear we are doing here is creating a class of
palpable error, which is even lower than preserved error. For that
reason, I must dissent as to the "palpable error" issue .
COUNSEL FOR APPELLANT:
Steven Jared Buck
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
Bryan Darwin Morrow
Office of the Attorney General
1024 Captial Center Drive
Frankfort, Kentucky 40601
ixyrrmr C~Vurf of ~6nfurhv
2008-SC-000118-MR
WILLIAM SANDERS
APPELLANT
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C . HUNTER DAUGHERTY, JUDGE
NO . 07-CR-00131
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER GRANTING PETITION FOR REHEARING
AND SUBSTITUTING MODIFIED OPINION
The Appellee having filed a Petition for Rehearing of the Opinion of
the Court by Justice Venters, rendered June 25, 2009 ; and the Court
having reviewed the record and being otherwise fully and sufficiently
advised ;
The Court ORDERS that the Appellee's petition is GRANTED ; and
the attached Memorandum Opinion of the Court is SUBSTITUTED for
the original opinion, rendered June 25, 2009 .
All sitting. Minton, CA . ; Abramson, Cunningham, Noble,
Schroder, and Venters, JJ ., concur. Scott, J., concurs, in part, and
dissents, in part.
ENTERED : January 21, 2010 .
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