DANNY LEE CARVER V. COMMONWEALTH OF KENTUCKY
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MODIFIED : JANUARY 21, 2010
RENDERED : JANUARY 22, 2009
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2007-SC-000428-MR
DANNY LEE CARVER
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APPELLANT
ON APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE JANET CROCKER, JUDGE
ALLEN CIRCUIT COURT NO . 06-CR-00038
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING, IN PART, AND
REVERSING AND REMANDING, IN . PART
Appellant, Danny Lee Carver, was convicted by an Allen Circuit
Court jury in April 2007 of first-degree burglary, third-degree criminal
mischief, third-degree terroristic threatening, carrying a concealed deadly
weapon, and of being a first-degree persistent felony offender (PFO) . For
these crimes, Appellant was sentenced to fifty years in prison . Appellant
now appeals to this Court as a matter of right. Ky. Const. ยง 110(2) (b) .
Appellant asserts six arguments in his appeal: (1) statements he
made before receiving the Miranda warnings were inadmissible at his
trial, (2) the prosecutor's questioning and closing argument in the guilt
phase of trial was improper, (3) a directed verdict of acquittal on the
offense of burglary in the first degree should have been granted, (4) the
prosecutor's closing argument in the penalty phase of trial was improper,
(5) the evidence presented was insufficient to support the first-degree
PFO conviction, and (6) his sentence is so disproportionate to the crime
alleged that it constitutes cruel and unusual punishment. For the
reasons, set forth herein, we reverse Appellant's first-degree
PFO conviction, affirm his other convictions, and remand for
resentencing .
On or about the night of April 15, 2006, a disturbance occurred
at the home of Kevin Witcher. Samantha Deloe, Witcher's live-in
girlfriend, testified that she discovered Appellant in the house slumped
over in a chair when she returned from the Allen County Fair demolition
derby. As she approached Appellant, he jumped up exclaiming that he
did not break into anyone's house . Deloe then called Witcher, who
returned home to confront the then unknown intruder. A fight ensued
between Witcher and Appellant. Witcher testified that the fight occurred
because Appellant was combative .
Appellant's testimony indicated a different version of events leading
to the fight. He testified that he had been asked to leave the demolition
derby due to excessive intoxication and that Witcher gave him a ride. He
said that he and Witcher drank most of the night before going together to
the Witcher/ Deloe residence. Appellant testified that the fight started
over work his brother performed for Witcher's mother.
When the fight between Witcher and Appellant became more
intense, Deloe called the Scottsville Police . Officer Brandon Ford and
Sergeant Jeff Cooke arrived on the scene to find Appellant conscious but
face down in the yard, having been physically beaten by Witcher.
Appellant was immediately handcuffed and placed in the police cruiser.
Both police officers testified that Appellant was out of control and
combative at the scene. Therefore, neither of the police officers frisked
Appellant for weapons before placing him in the police cruiser.
Officer Ford and Sergeant Cooke investigated and discovered at the
house an air-conditioner unit knocked out of a window and laying on the
ground, a cut-up pillow and pillowcase, a cut-up old baby car seat, and
several cans of beer in a toy chest next to the chair where Deloe testified
she discovered Appellant . Both Witcher and Deloe testified that the state
of these objects was different from when they had left to attend the
demolition derby. As the officers questioned witnesses at the scene,
Appellant kicked the back window of the police cruiser out of its track.
Because of concern for injury he may have sustained in the fight,
Appellant was taken to the hospital for a check up. The police officers
removed Appellant's handcuffs so that he could be properly x-rayed. As
one of the hospital staff aided Appellant, he knocked over a table and
raised a knife, which he flourished . Sergeant Cooke immediately asked
Appellant what he was doing with a knife. Appellant responded by
saying that Sergeant Cooke "needed to have his boy [Officer Ford] check
me a little better before he puts me in the car." Eventually, Appellant
surrendered the knife. At trial, the knife was identified as a type of steak
knife . Deloe testified that the knife was out of a set she owned.
Appellant testified that he found the knife on the table he had knocked
over at the hospital .
On May 17, 2006, an Allen County grand jury indicted Appellant
on the following charges: first-degree burglary, two counts of thirddegree criminal mischief, two counts of third-degree terroristic
threatening, carrying a concealed deadly weapon, and for being a firstdegree PFO . The trial jury found him guilty on all charges except on one
of the criminal mischief counts. He was sentenced to fifty years'
imprisonment.
I.
THE STATEMENTS APPELLANT MADE PRIOR TO RECEIVING
HIS MIRANDA RIGHTS WERE ADMISSIBLE AT TRIAL.
Appellant's first argument is that the statements he made at the
hospital regarding the knife he brandished were inadmissible at trial
because they were made before receiving the Miranda warnings .
Appellant attacks the admission of his statement because it implies that
he had armed himself with a dangerous weapon at Witcher's house,
raising his potential crime from second-degree burglary to first-degree
burglary. KRS 511 .020. No objection was made at trial, so the issue is
unpreserved. We find no error.
Appellant's possession of the steak knife at the hospital created a
safety risk to hospital staff, patients, police officers, and himself. An
exception to the Miranda warning requirement exists when public safety
is at risk. United States v. Quarles, 467 U.S . 649 (1984) . There are -~
"situation[s] where concern for public safety must be paramount to
adherence to the literal language of the prophylactic rules enunciated in
Miranda." Id. at 653 . Hence, police officers in potentially dangerous
situations can ask questions that are necessary to establish safety but
may not ask questions that are designed to elicit testimonial evidence
from the suspect. Id. at 658-59.
Once Appellant flashed the knife, Sergeant Cooke had a duty to
quickly disarm him and ascertain how he obtained it, lest he acquire
another . Sergeant Cooke's question was not intended to prompt a
confession or provide incriminating evidence but was simply the officer's
attempt immediately to diffuse a dangerous situation . While it may have
been preferable for the police office rs to provide the Miranda warnings
prior to taking Appellant to the hospital, his belligerent and combative
nature made such warnings difficult, if not impossible, to provide.
Appellant's argument, however, fails at a more fundamental level.
The rationale of Miranda v. Arizona, 384 U .S . 436 (1966), which has not
changed throughout the factual variations of its progeny, is that an
accused person in police custody is inherently under pressure, subtle or
overt, to speak to police when he ought to keep silent. Miranda refers to
the "compulsion [to speak] inherent in custodial surroundings . . . ,"
Id. at 458, and holds that "a warning [of the right to remain silent] is an
absolute prerequisite in overcoming the inherent pressure of the
interrogation atmosphere ." Id. at 468 . Here, Appellant was technically
in police custody in the hospital x-ray room; but he was not in an
inherently oppressive interrogation atmosphere . In fact, he had
temporarily taken control and command of the situation by force at the
point of the knife; and it was during his control of the x-ray room that
the officer excitedly asked what Carver was doing with the knife. The
fact that his answer was not directly responsive to the question shows
that Appellant was not succumbing to the inherent pressure of police
custody. He was, instead, in open defiance of it. Requiring police
officers to issue a Miranda warning to the suspect holding them at
knifepoint or gunpoint does nothing to further the Miranda decision's
goal of protecting and preserving Fifth Amendment Rights . Hence,
admitting Appellant's statements at the hospital regarding the knife was
not error.
Appellant contends that without the statement, the evidence is
insufficient to establish that he was armed at the scene of the burglary
and, therefore, insufficient to sustain the first-degree burglary charge.
Yet, adequate evidence existed to prove that Appellant had the knife
when he left the house. (Interestingly, he concedes in his argument that
the fifty-year sentence is excessive that the knife was in his pocket while
at the residence.) Deloe testified at trial that the knife belonged to a set
of knives she owned. Additionally, the police officers testified that
Appellant could not have armed himself while he was in custody during
the time he was handcuffed .
II . THE PROSECUTOR'S QUESTIONING AND CLOSING
ARGUMENT IN THE GUILT PHASE WERE NOT
ERRONEOUS .
Appellant next argues that the prosecutor asked inappropriate
questions and gave an inappropriate closing argument in the guilt phase
of trial. Appellant failed to object and so we review for palpable error.
RCr 10.26.
Appellant first contends that the prosecutor asked Sergeant Cooke
multiple questions that impermissibly elicited his opinion as to
Appellant's guilt. On redirect, the prosecutor asked:
Prosecutor:
Based upon what you saw that night,
how everybody was acting, how he
[Appellant] was acting, what all
happened, did you form an opinion as to
whether or not you believed [the version
of events Appellant told him that night]?
[Sergeant Cooke responded that there are two sides to every
story, and his job is not to take sides.]
Prosecutor :
Based upon, you're there, you saw what
happened, you saw how people reacted
to each other, you saw the scene, you
went through the house, you talked to
Mr. Carver, you saw how he was acting,
and you got to observe how he was
acting for the next several hours. Okay.
Is there anything that makes you think,
based upon all of that, that he was
telling you the truth?
Sergeant Cooke:
No .
Prosecutor :
There simply wasn't anything at all that
made you think he was telling you the
truth?
[Sergeant Cooke responded that he would take the word of
four witnesses over one person's word.]
Prosecutor :
When you put the whole ball of wax
together, was there anything that made
you believe he [Appellant] was telling you
the truth?
Sergeant Cooke :
No.
These questions were asked in response to Appellant's cross-examination
of Sergeant Cooke . During cross-examination, Appellant attempted to
impeach Sergeant Cooke's testimony by introducing into evidence a
memorandum he wrote four months after the incident, which appeared
sympathetic to Appellant's version of the facts. The prosecutor objected
to Appellant's use of the memorandum and, on redirect, was attempting
to show that the memorandum was just a report of the incident, not
Sergeant Cooke's opinion on Appellant's truthfulness .
In light of Appellant's cross-examination of Sergeant Cooke, it
becomes clear that the prosecutor's redirect questioning was an attempt
to rebut Appellant's cross-examination. Responding to attempted
impeachment evidence is allowed on redirect. See Sanders v.
Commonwealth , 801 S.W .2d 665, 675 (Ky. 1990) (holding that defense
questioning on cross-examination can open the door to certain redirect
examination) . We cannot find that Appellant suffered manifest injustice
from this questioning. While it is entirely inappropriate for a prosecutor
to ask questions that give a witness the chance to comment on a
defendant's guilt, these questions were not so egregious to rise to the
level of palpable error. Additionally, the jury was admonished by the
trial judge that they are the judge of witness credibility and, therefore,
knew they had the option to discount Sergeant Cooke's testimony. See
Tamme v . Commonwealth, 973 S .W.2d 13 (Ky. 1998) (holding that jurors
are presumed to follow an admonishment from the court) . The
prosecutor's questions are not palpable error.
Appellant next argues that the following redirect questioning of
Officer Ford was improper. Appellant failed to preserve any objection to
this line of questioning:
Prosecutor :
Okay. So, basically, what everything
they're [Witcher and Deloe] saying is being
backed up by your own senses?
Officer Cook :
Correct.
Prosecutor :
His version, what was it backed up by?
Officer Cook:
Nothing.
Prosecutor :
At this point, given the questions you've
been asked, do you feel like [Appellant]
ought to be uncharged?
Officer Ford:
No sir.
Prosecutor:
Is there anything that's been [said], to
change your opinion in any way
about . . . .
Officer Ford :
No sir.
These questions were asked in response to Appellant's cross-examination
where he attempted to discredit Officer Ford's prior testimony. Appellant
attempted to imply that since Officer Ford arrived at Witcher's house
after the fight ended, he could not be a credible source of information on
what happened that night. The defense attempted to show that the
police jumped to conclusions and failed fully to investigate . The
prosecutor's questions were, thus, designed to rebut Appellant's
impeachment by showing that Officer Ford saw the condition of Witcher's
home, considered all the relevant observations, and still saw fit to charge
Appellant with the alleged crimes . Again, while it is inappropriate for a
prosecutor to ask questions which give a witness the opportunity to
comment on a defendant's guilt, these questions were not improper and
do not rise to the level of palpable error.
Appellant next argues that during the guilt phase closing
arguments, the prosecutor impermissibly vouched for the honesty of the
police officers and other prosecution witnesses. "Any consideration on
appeal of alleged prosecutorial misconduct must center on the overall
fairness of the trial. In order to justify reversal, the misconduct of the
prosecutor must be so serious as to render the entire trial fundamentally
unfair ." Stopher v. Commonwealth , 57 S .W.3d 787, 805 (Ky . 2001)
(citations omitted) .
The prosecutor first commented, "Do I think that the officers are
going to come in here and . . . commit perjury, lie, plead on a falsehood,
risk felony charges themselves, risk being fired, risk their pensions, risk
everything else? Samantha' Deloe, I have no idea whatsoever why she
would come in here and lie ." Appellant argues that this constituted
vouching for the credibility of witnesses and is impermissible. United
States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979) ; United States v.
Francis, 170 F .3d 546, 550 (6th Cir. 1999) .
These statements do not constitute the expression of opinion as to
the credibility of the witnesses. The prosecutor simply argued the point
that the witnesses had no reason to lie. This was a fair comment on the
credibility of his witnesses in light of Appellant's trial strategy to show
that all of them were lying. The jury had previously been instructed by
the trial judge that they are the ultimate judge of a witness's credibility .
These statements did not undermine the fairness of Appellant's trial or
his due process rights. There is no error here .
Finally, Appellant argues that this comment by the prosecutor was
improper :
Part of the reason we're discussing first-degree
burglary, and [Appellant's counsel] commented on that, is,
quite frankly, that's the most serious charge. That's the one
that, quite frankly, he's worried about. Okay? If you come
back and compromise out and, and find him not guilty on
the first charge or amend it down to the misdemeanor on like
a criminal trespass or something like that, quite frankly it's,
its going to be the best day that ever happened over at that
table. That's just the way the charges are lined up. So
that's why we're discussing it.
Appellant further argues that the prosecutor exacerbated his error by
telling the jury how to identify misdemeanor offenses in the jury
instructions . Appellant believes this statement was improper because it
urged the jury to convict him of burglary instead of the lesser included
misdemeanor . Appellant argues this is impermissible because
sentencing issues should not be raised prior to the penalty phase of a
trial . Norton v. Commonwealth, 37 S .W.3d 750, 753 (Ky. 2001) . We
agree that the potential sentence to be imposed should not be raised in
the guilt phase of a trial, but we conclude that the remarks of the
prosecutor in this case do not raise a sentencing issue . Moreover, we
note that it is permissible during the guilt phase to discuss the
differences in the elements of the various offenses described in the
instructions . These jury instructions contained the standard, yet
curious, requirements that the jury must find under the burglary charge
that the offense was committed "before the finding of the indictment"
and, under the trespass charge, that the offense was committed "within
twelve months before the finding of the indictment ." Taken in context
with the entire argument, it is apparent that the prosecutor felt a need to
explain that instruction, which to a jury may seem strange, it being hard
to imagine how an indictment may be returned before the commission of
the crime charged therein. His argument was clumsily phrased but did
not prejudicially stray into the arena of comment on sentencing and,
thus, did not deprive Appellant of a fair trial.
12
The prosecutor's statements only explained, why he had spent so
much time discussing first-degree burglary . The comment does not
allude to the fact Appellant was charged with being a PFO . It is
permissible to allow the prosecutor the opportunity to plead for the
outcome he hopes the jury reaches. Slaughter v . Commonwealth,
744 S.W .2d 407, 412 (Ky. 1987) (holding that both parties have great
leeway in making closing arguments) . There is no error here .
III.
THE TRIAL COURT PROPERLY DENIED APPELLANT'S
DIRECTED VERDICT MOTION ON THE CHARGE
OF FIRST-DEGREE BURGLARY .
Appellant next argues that he should have received a directed
verdict of acquittal on the offense of first-degree burglary. KRS 511 .020 .
Appellant argues that there was insufficient evidence presented to show
he entered Witcher's house intending to commit a crime . In particular,
Appellant argues that on the night in question, he was excessively
intoxicated and, hence, unable to form the intent to commit a crime.
KRS 501 .080 .
KRS 511 .020 states:
A person is guilty of burglary in the first degree when, with
the intent to commit a crime, he knowingly enters or remains
unlawfully in a building, and when in effecting entry or while
in the building or in the immediate flight therefrom, he or
another participant in the crime:
(a)
Is armed with explosives or a deadly weapon; or
(b)
Causes physical injury to any person who is not a
participant in the crime; or
13
(c)
Uses or threatens the use of a dangerous instrument
against any person who is not a participant in the
crime .
A trial court's decision regarding a directed verdict motion is
reviewed, under the standard articulated in Commo nwealth v. Benham ,
816 S .W.2d 186 (Ky. 1991) :
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 given. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the
Commonwealth is true, but reserving to the jury questions
as to the credibility and weight to be given to such
testimony. On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant
is entitled to a directed verdict of acquittal.
Id. at 187.
Under this standard, the trial court properly denied Appellant's
motion for a directed verdict of acquittal on the charge of first-degree
burglary. The evidence presented allows a reasonable juror to believe
that Appellant was inside Witcher's house with the intent to commit a
crime . Deloe testified that the steak knife Appellant brandished at the
hospital came from a set of knives she owned, strongly implying that the
knife was stolen . Further, the destroyed pillowcase, cut-up car seat, and
displaced beer amply support the inference that Appellant was looking
for something to steal or that he intended to commit the crime of
criminal mischief. See Anastasi v. Commonwealth, 754 S .W.2d 860, 862
14
(Ky. 1988) ("Intent can be inferred from the actions of an accused and
the surrounding circumstances . The jury has wide latitude in inferring
intent from the evidence.") . The evidence of his intoxication was not so
compelling as to completely negate the issue of intent. Hence, it was not
unreasonable for a jury to find Appellant guilty of first-degree burglary.
The trial court properly denied the motion for a directed verdict of
acquittal on the charge of first-degree burglary.
IV. THE PROSECUTOR'S CLOSING ARGUMENT IN
THE PENALTY PHASE OF TRIAL WAS NOT
REVERSIBLE ERROR.
Appellant's next argument is that the prosecutor made improper
comments during the penalty phase closing argument . Again, we review
to see if the comments violated Appellant's constitutional due process
rights or caused him a fundamentally unfair trial. Stopher, 57 S.W .3d at
805 . The first statement Appellant alleges to be error is:
The persistent felony offender. Quite frankly, the
burglary first degree, the penalty range is ten to twenty.
That's the way it is . If somebody has a weapon in
somebody's home, the Legislature just says, "You know, we
can't have that." We can't have people, you have to be safe
in your own home . That's just part of it. If they're a first
time person that come in, it's a, it's a 19-year-old kid who
does something stupid and comes in, realistically, you also
have to trust that we're, we're not going to try and tag a firsttime offender and throw him in there. You try and give
people who come in the, first time a break. That's just the
way it is. That doesn't apply here.
Appellant argues that this comment was improper because the
prosecutor was telling the jury that he has already considered leniency
15
and determined that a lenient sentence is inappropriate . Cf., Caldwell v.
Mississippi, 472 U .S. 320 (1985) (holding that prosecutor's closing
argument at penalty phase, which diminished the jury's responsibility for
the sentence to be imposed, held improper) . However, the trial record
indicates that this comment only referred to the long list of Appellant's
prior convictions that were presented to the jury as evidence to support a
PFO conviction and an enhanced sentence . The prosecutor is allowed to
make comments regarding the evidence presented. Slaughter,
744 S.W .2d at 411-12 . The prosecutor's comments do not constitute
error.
Appellant then argues that the prosecutor improperly encouraged
the jury to send a harsh message to the community through their
sentence:
If he were the only person that knew about this, that's
fine . But this is going to go in the paper, and he's not the
last defendant we deal with. And he's not the only person
getting charged in Allen County. He's not the last, the only
person who's going to know about this . Quite frankly,
people who have multiple --- . I understand, you've got to be
sitting there thinking, "Man, that's a lot of time." But when
you count up the number of sentences he's had over those
years . Okay? People who are convicted of felony crimes
have a much better feel for the penalty ranges they're looking
at, doing conduct, than you do because you've never seen it
before . But if you have two, three, or four, or five felony
convictions, you know, because you've had discussions with
attorneys, and you've looked at the penalty ranges, and
you've seen all this stuff.
Appellant argues that these comments were an attempt by the
prosecutor to cajole the jury into "sending a message" against crime in
16
Allen County. Such comments have been held to be inappropriate in
closing arguments . United States v . Solivan, 937 F.2d 1146, 1156
(6th Cir. 1991) . The comment only briefly alludes to the fact that the
sentence to be imposed may have some deterrent effect on other repeat
offenders; and it points out that unlike the ordinary juror, repeat
offenders are likely to be familiar with the severe penalty range
established for persistent felony offenders. Those are legitimate
comments that put perspective on the range of penalty that the jury has
to consider.
The prosecutor's comments do not rise to the level of palpable
error. While "send a message" arguments are impermissible, the
comments the prosecutor made here are mild compared with other "send
a message" comments we found not to constitute palpable error. See
Young v . Commonwealth , 25 S .W.3d 66, 73 (Ky. 2000) (comment that the
defendant's sentence would "send a message throughout this community
[that if] you start manufacturing methamphetamine in Muhlenberg
County . . . you're gonna receive the maximum punishment that we can
give you,' and `[t]o send a message to these people to discontinue this
type of activity [ ]" found not to constitute palpable error) ;
Commonwealth v. Mitchell, 165 S .W.3d 129, 131 (Ky. 2005) (statement
"if we are ever to make a dent in a terrible drug problem we've got,
prescription drugs with Oxycontin, it's time to send a message to this
defendant and to this community that we're going to punish drug dealers
17
for doing what they're doing. It's time we send a message," found not to
be palpable error) ; Brewer v. Commonwealth, 206 S .W .3d 343, 349 (Ky .
2006) (prosecutor's comments including, "And, they're going to hear
about the way an Owen County jury views all of this, and so that's
important. The community's going to know about it. They're going to
know whether or not we have the backbone to stand up to it. And, so
there is a message with your sentence and you've got to consider that"
found not to be palpable error) . While we strongly disapprove of an
attempt to get a jury to render a verdict based on sending a message to
the community, the comments here do not constitute palpable error.
V. THE EVIDENCE FOR APPELLANT'S FIRST-DEGREE
PFO CONVICTION WAS SUFFICIENT, BUT THE
JURY INSTRUCTION IS A PALPABLE ERROR.
Appellant next argues that there was insufficient evidence to
support his conviction for being a first-degree persistent felony offender.
This argument is unpreserved, and so we will review under our palpable
error standard. RCr 10 .26 . He specifically cites two reasons for the
purported insufficiency : (1) one of the prior offenses in the jury
instruction was a misdemeanor, and (2) there was no proof of his age .
Although the jury instruction was incorrect, the evidence was
ample to support a first-degree PFO conviction . The jury instruction as
tendered for the first-degree PFO charge instructed the jury that
Appellant could be found guilty of being a first-degree PFO if it found
beyond a reasonable doubt, among other things:
18
That prior to April 16, 2006, the defendant was
convicted of Attempt to Commit Third-degree Arson in case
No . 93-CR-00007, by final judgment of the Allen Circuit
Court entered on September 10, 1993 ; and
That prior to April 16, 2006, the defendant was
convicted of Theft by Unlawful` Taking Over $300 in case
No. 05-CR-00083, by final judgment of the Allen Circuit
Court entered on February 9, 2006.
Appellant correctly notes that attempt to commit third-degree arson is a
Class A misdemeanor and not a felony. See KRS 506.010(4)(d) (attempt
to commit a Class C or D , felony like third-degree arson is a Class A
misdemeanor) . Hence, Appellant reasons that the jury could not convict
him of being a first-degree PFO under this jury instruction because, as a
matter of law, only one of the offenses identified therein was a felony.
To prove the elements of the offense of PFO, the Commonwealth
presented the testimony of the Allen Circuit Clerk . The clerk testified to
Appellant's prior convictions. In addition to Appellant's more than
twenty misdemeanor convictions, the clerk testified to Appellant's five
prior felony convictions. Three of those felonies, plus the misdemeanor
erroneously placed in the instructions, were contained in separate
indictments but resulted in final judgments all entered in September
1993 . Thus, for purposes of a PFO charge, those offenses constitute only
one prior conviction . KRS 532 .080(4) . Those three felonies are :
(1) third-degree arson (Indictment 92-CR-00052), (2) first-degree bail
jumping (Indictment 93-CR-00033), and (3) receiving stolen property over
$300 (Indictment 93-CR-00041) . The misdemeanor conviction was case
19
number 93-CR-00007. Any of the three felony convictions from
September 1993 would qualify as one element of the PFO charge. On
October 25, 1995, Appellant was convicted again of receiving stolen
property over $300 (Indictment 95-CR-00009) . That conviction stands as
a second qualifying conviction for the PFO charges. Finally, Appellant
was convicted on February 9, 2006, for the felony offense of theft by
unlawful taking over $300 (Indictment 05-CR-00083) . That conviction
stands as a third qualifying conviction .
Initially, the jury instructions for the PFO charge contained as
elements of that crime only the latter two indictments. To be certain that
the Appellant was, in fact, the same "Danny Lee Carver" named in each
felony conviction, the clerk had testified to the birth date and social
security number indentifying the defendant on each case. All cases
showed the same birth date ; but one case, Indictment 95-CR-00009,
showed a social security number (XXX-XO-XXXO) with two digits different
from all the others (XXX-X2-XXX2) . With very little discussion and no
objection, that felony conviction was removed from the jury instructions ;
and one of the four convictions from September 1993 was inserted.
Although any of the September 1993 felony convictions could have been
selected, attempted third-degree arson was chosen . As was later
realized, that offense is actually a misdemeanor .
Appellant next argues that the first-degree PFO conviction should
be overturned because the Commonwealth failed to prove beyond a
20
reasonable doubt that the prior felony offenses were committed when
Appellant was over the age of eighteen . At trial, the Commonwealth
presented the date of the final convictions for each of the felonies but
failed to present any evidence of the date on which the crimes were
committed. Evidence was presented, however, that Appellant was born
in 1957 and that most of the felony convictions occurred in the 1990s.
In Martin v. Commonwealth, 13 S .W.3d 232 (Ky. 1999), it was held
that a "reasonable inference" made by the jury on a necessary element
satisfies the requirements of the PFO statute. Id. at 235, overruling
Hon v. Commonwealth, 670 S.W .2d 851 (Ky. 1984) . A "reasonable
inference . . . is a process of reasoning by which a proposition is deduced
as a logical consequence from. other facts already proven." Id. In this
matter, the jury was given the birth date of the Appellant and the dates
of the convictions for the felonies . The jury could make a reasonable
inference that since Appellant turned eighteen in 1975 that he likely
committed at least two of these felonies after that date since the
prosecution for the felonies did not occur until the 1990s. There is no
error or palpable error here .
Although we reject Appellant's argument that there was
insufficient evidence to prove his age, we conclude that his first-degree
PFO conviction must be reversed because of the erroneous jury
instruction that listed a misdemeanor as a qualifying felony conviction .
We believe that palpable error occurred because of (1) the improper
21
inclusion of a misdemeanor as a qualifying conviction in the PFO
instruction; (2) our presumption that erroneous jury instructions are
prejudicial, Harp v. Commonwealth , 266 S.W.3d 813 ; 818 (Ky. 2008) ;
and (3) the fact that Carver was assessed the maximum possible penalty.
When a jury is accepted to try a case, it must swear to try the case
in accordance with the evidence and the law. The evidence comes from
the witness stand; the law comes from the court through the
instructions . Here, under the instructions of the trial court, the jury
found Appellant guilty of being a persistent felony offender in the first
degree under an instruction that establishes the elements only for a
persistent felony offender in the second degree . In other words, the jury
found beyond a reasonable doubt only that Appellant had one prior
misdemeanor and one prior felony.
There is no question that Appellant could qualify as a first-degree
persistent felony offender. Moreover, there is no doubt that there was
ample evidence presented at trial for him to have been convicted
accordingly, had the jury been properly instructed . Nevertheless, the
jury was instructed on a prior misdemeanor and a prior felony, as
opposed to two prior felonies. It was upon this instruction that Appellant
was convicted.
Facts are stubborn things. No amount of explanation or evidence
at trial can change this indisputable truth. A duly selected and properly
sworn jury found by unanimous verdict that Appellant had been
22
convicted of attempt to commit third-degree arson, a misdemeanor, and
theft by unlawful taking over $300 .00, a felony. Such an instruction
would permit finding Appellant to be a second-degree persistent felony
offender. Howev6r, we, as an ap-pellate court, cannot-dffirm a conviction
for a status greater than that which the jury instructions would permit.
It is unreasonable for a jury to convict an individual without
properly having been instructed as to the elements of the crime. In
Harper v. Commonwealth , this Court held that failure to instruct the jury
on the element of intent in a charge for complicity was reversible error.
43 S.W .3d 261, 263-64 (Ky. 2001) . Similarly, in Varble v.
Commonwealth , this Court reversed a conviction for manufacturing
methamphetamine because the jury had actually been instructed on the
lesser offense of possession of drug paraphernalia . 125 S .W.3d 246, 255
(Ky. 2004) . Other courts have also recognized that a conviction cannot
stand if the jury instructions did not include an essential element of the
offense.' These cases illustrate the necessary recourse when the jury is
not instructed fully as to the elements of the crime at hand-reversal and
remand .
See State v. Mills , 109 P.3d 415, 422 (Wash . 2005) (reversing conviction for
felony harassment and remanding for new trial for failure to instruct the
jury on all statutory elements) ; Smith v. State, 459 N.E.2d 355, 358 (Ind .
1984) (finding reversible error and remanding for new trial due to failure to
instruct the jury on the requisite intent to convict of attempted murder) ;
U.S. v. Stansfield , 101 F.3d 909, 922 (3rd Cir. 1996) (holding omission of
intent to kill element constituted error, consequently reversing and
remanding) ; Chambers v. People, 682 P.2d 1173, 1177 (Colo . 1984)
(reversing second-degree kidnapping conviction because jury was not
instructed as to culpability) .
23
Accordingly, reversal of the PFO issue is required; and we would
remand for a new trial of the PFO only. A retrial on the PFO conviction
seems to be a small price to pay to protect the integrity of our jury
instructions . Because- e now reverse Appellant's PFO conviction and
remand for new PFO proceedings and any other proceedings consistent
with this opinion, all other arguments regarding the appropriateness of
his enhanced sentence are now rendered moot.
VI . CONCLUSION .
For the reasons set forth herein, the judgment and sentence of the
Allen Circuit Court is affirmed, in part, reversed, in part, and remanded
for a new PFO proceeding.
All sitting. Minton, C.J. ; Abramson, Cunningham, Noble,
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 V for reasons the error was harmless . You
can never have "palpable error," if the error is - as it was here harmless . Here, three (3) other felony convictions of Appellant were in
evidence - none of which were significantly questioned . Thus, the fact
that the trial court erroneously inserted the misdemeanor in the
instruction was plainly harmless . What I fear we are doing here is
creating a class of palpable error lower than preserved error.
24
To find "palpable error" - as opposed to structural error - you
must reach a level higher than harmless error ; otherwise, palpable error
would be a lower standard than preserved error, which, if harmless, is
not reversible . While the instruction itself was admittedly defective
because it misnamed the misdemeanor conviction as a prior felony
conviction, the evidence presented to the jury included multiple felonies,
any of which would have been sufficient to sustain the judgment from
which this appeal is taken. In fact, there is no reasonable doubt that had Appellant objected and put the trial court on notice of the problem one of the other felony convictions would have been properly inserted in
the instructions to correct the error; and the outcome of this case would
have been exactly the same .
Thus, given this error was harmless beyond any doubt, I must
respectfully dissent.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General
Commonwealth of Kentucky
Room 118, Capitol Building
Frankfort, Kentucky 40601
Susan Roncarti Lenz
Assistant Attorney General
Commonwealth of Kentuc
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601
,*ixyrrnte C~vixxf of ~rufurhV
2007-SC-000428-MR
DANNY LEE CARVER
V.
APPELLANT
ON APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE JANET CROCKER, JUDGE
NO. 06-CR-00038
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER GRANTING PETITION FOR REHEARING
AND SUBSTITUING MODIFIED OPINION
The Appellant having filed a Petition for Rehearing of the
Memorandum Opinion of the Court, rendered January 22, 2009; and the
Court having reviewed the record and being otherwise fully and
sufficiently advised ;
The Court ORDERS that the Appellant's petition is GRANTED ; and
the attached Memorandum Opinion of the Court is SUBSTITUTED for
the original opinion, rendered January 22, 2009 .
All sitting. Minton, C.J . ; 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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