SEMONIN T. MOORMAN V. COMMONWEALTH OF KENTUCKY
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SEMONIN T. MOORMAN
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA JEAN ECKERLE, JUDGE
NO . 07-CR-002576
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellant, Semonin T. Moorman, appeals as a matter of right' from a
judgment entered upon a jury verdict convicting her of first-degree
manslaughter and sentencing her to twenty years' imprisonment.
In this appeal she raises two arguments . First, that her conviction is
invalid because one of the assistant Commonwealth's attorneys involved in her
prosecution had not been properly sworn in as a member of the Kentucky, bar,
and was therefore an unlicensed attorney at the time of trial; and second, that
the trial court erred when it disallowed evidence of the alleged victim's violent
behavior which Appellant claims was relevant to her use of self-defense ; and,
1 Ky. Const. § 110(2)(b)
that the trial court erred by disallowing evidence relating to the victim's prior
drug use .
For the reasons explained below, we affirm.
I . FACTUAL AND PROCEDURAL BACKGROUND
In the light most favorable to the verdict, the facts relevant to this appeal
are as follows. On the afternoon of July 28, 2007, Patricia Shoulders went to
the residence of Tasha Bryant. Shoulders, who appeared to have no serious
injuries, told Bryant that she had just been in a fight and wanted to use the
telephone . As they talked, Appellant, with several other persons, approached
the Bryant residence . When Appellant demanded that Shoulders come off the
porch, Shoulders responded, "No Tasha, I don't want to fight anymore, I don't
want to fight them anymore ." Appellant then went onto Bryant's porch armed
with a knife and began fighting with Shoulders. Bryant saw a knife in
Appellant's hand as she approached . After several minutes of fighting,
Appellant left and Shoulders, obviously wounded, slumped over onto Bryant's
knees . Shoulders was transported to the hospital, where she was pronounced
dead . The cause of death was a stab wound. A knife with Shoulders's blood
on it was found in Bryant's yard .
Appellant was indicted for Shoulders's murder. At trial, she claimed that
prior to the scuffle on Bryant's porch, Shoulders had attacked her from behind
with a hammer in the Iroquois housing project across the street from Bryant's
residence ; that she stabbed Shoulders then to ward off the attack ; and that she
did so in self-defense . The medical evidence established that the stab wound
was a deep wound to Shoulders's left lung and right ventricle of her heart, and
that the wound was an "immediately life threatening injury." Appellant does
not challenge the sufficiency of the evidence to support her conviction . At the
conclusion of the trial, the jury convicted Appellant of first-degree
manslaughter.
II . THE INVOLVEMENT OF AN UNLICENSED ATTORNEY
IN APPELLANT'S TRIAL WAS HARMLESS ERROR
Appellant first contends that her conviction was improper because an
unlicensed attorney participated in the presentation of the Commonwealth's
case against her. While she has identified no specific prejudice resulting from
his participation in the trial, she argues that the error was structural, and is
therefore not subject to harmless error analysis . 2
At the final sentencing hearing, it was disclosed to the trial court that, at
the time of the trial, Logan Sims, one of the two assistant prosecutors who
presented the case against Appellant, had not been properly admitted to the
Kentucky Bar pursuant to SCR 2.120 . The other assistant prosecutor who
tried the case, Arthur McLaughlin, was properly licensed as an attorney.
It is uncontested that Sims,passed the Kentucky bar examination in
October 2008, but was out of the country at the time of the formal swearing-in
2 The Commonwealth argues that this issue is not properly preserved because
Appellant failed to obtain a ruling from the trial court upon the issue. Although
Appellant did not specifically request any relief from the trial court relating to the
issue, she made clear that she sought to preserve the issue for appellate review, and
the Commonwealth specifically stipulated that the issue was preserved. In light of
the Commonwealth's stipulation, we will treat the issue as preserved and address
the argument on the merits .
ceremony before the Kentucky Supreme Court . When he returned, a circuit
courtjudge administered the constitutional oath to him and he began working
in the Commonwealth's attorney's office .3 Sims and the judge who
administered the oath were apparently unaware of SCR 2 .120, which in
relevant part provides :
When an applicant is approved for admission [to the bar] that
applicant must apply for and be granted certificate of admission
prior to engaging in the practice of law in this state . As
prerequisites for the issuance of such a certificate an applicant . . .
a
shall be administered the Constitutional Oath of Office either by a
Justice of the Supreme Court or by the Clerk of the Supreme Court.
Upon completion of the prerequisites, the Clerk shall deliver to the
applicant a certificate of admission on a form approved by the
Court, and the issuance of the certificate shall be duly recorded by
the Clerk.
(emphasis added) .
After the trial, Sims learned from the Kentucky Bar Association that the
administration of the oath by the circuit court judge was insufficient for his
admission into the bar . The Commonwealth concedes that Sims was not
properly admitted to the bar at the time of the trial . Appellant does not
3
In its brief the Commonwealth states, "When Sims was hired by the Commonwealth
Attorney, he was administered the required oath for that office." (emphasis added)
During the discussion at the sentencing hearing, the Commonwealth stated that
Sims was "sworn in by a circuit court judge" and "thought one substituted for the
other," in context meaning that being sworn in by a circuit judge substituted for the
oath administered by a justice of the Supreme Court or the Clerk of the Supreme
Court. Accordingly, the record discloses no basis for the Commonwealth's
statement that the circuit judge administered the oath for the office of assistant
commonwealth's attorney as opposed to the constitutional oath for admission to the
bar. In her brief Moorman states that when Sims " began working in the
commonwealth's attorney's office, he went before a circuit court judge to be "sworn
into the bar." We will base our review upon Moorman's concession that the oath
administered to Sims by the circuit court was the constitutional oath for bar
admission .
contend that Sims or the Commonwealth's attorney had any knowledge of the
mistake, or otherwise acted in bad faith. When informed of the error, Sims's
work at the Commonwealth attorney's office was suspended until the oath was
administered in accordance with the rule .
KRS 15.760(3) provides, in relevant part, that "All assistant
Commonwealth's attorneys shall be licensed practicing attorneys." (emphasis
added) . Because Sims had not complied with the oath requirements of SCR
2 .120, he was not properly licensed during Appellant's trial. For this reason,
error occurred as a result of his participation in the trial as an assistant
Commonwealth's attorney, even if as the Commonwealth suggests, his role at
trial was subordinate to that of the other prosecutor, Mr. McLaughlin .
The Kentucky Constitution Section 228 specifies who is required to take
the constitutional oath, and the form of the oath :
Members of the General Assembly and all officers, before they
enter upon the execution of the duties of their respective offices,
and all members of the bar, before they enter upon the practice of
their profession, shall take the following oath or affirmation: I do
solemnly swear (or affirm, as the case may be) that I will support
the Constitution of the United States and the Constitution of this
Commonwealth, and be faithful and true to the Commonwealth of
Kentucky . so long as I continue a citizen thereof, and that I will
faithfully execute, to the best of my ability, the office of . . .
according to law; and I do further solemnly swear (or affirm) that
since the adoption of the present Constitution, I, being a citizen of
this State, have not fought a duel with deadly weapons within this
State nor out of it, nor have I sent or accepted a challenge to fight
a duel with deadly weapons, nor have I acted as second in carrying
a challenge, nor aided or assisted any person thus offending, so
help me God.
(emphasis added) . Significantly, however, our Constitution is silent upon the
issue of who may or must administer the oath . Section 116 of the Kentucky
Constitution directs that the Supreme Court, "shall by rule, govern admission
to the bar and the discipline of members of the bar." SCR 2 .120 is a clear
manifestation of that constitutional directive .
Though there was error relating to Sims's participation in the trial, it is
fundamental that "no error or defect in any ruling . . . or in anything done or
omitted by the court . . . is ground for granting a new trial or for setting aside a
verdict . . . unless it appears to the court that the denial of such relief would be
inconsistent with substantial justice ." RCr 9 .24 . Moreover, we "must
disregard any error or defect in the proceeding that does not affect the
substantial rights of the parties ." Id. "Virtually all errors, therefore, are
subject to harmless error analysis." Crossland v. Commonwealth, 291 S .W.3d
223, 231 (Ky. 2009) .
Appellant argues that this case presents a matter of structural error and
is not subject to harmless error analysis . "Structural" errors are errors "which
are, per se, reversible because they undermine the fundamental legitimacy of
the judicial process ." Id. at 232 . Structural errors are, therefore, not subject
to harmless error analysis at all. "In such cases, the error `necessarily
render[s] a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.' Washington v. Recuenco, 548 U.S. 212, 219
(2006) (citation and footnote omitted) . 4
We are unable to discern any federal constitutional provision which
implicates the right of a defendant to be tried by a licensed attorney. Moreover,
because Section 228 of our Constitution provides only that the oath must be
administered prior to entering the practice of law, without directing who must
administer the oath, that fact that Sims swore the prescribed oath before an
official generally authorized to administer oaths 5 avoided constitutional error.
Thus, we cannot construe Sims's participation in the trial as an error of
constitutional magnitude . Having the required educational background, and
having passed the Kentucky Bar exam and the character/ fitness review, he
was otherwise competent to participate in the trial. Certainly the participation
of an ineffectively sworn prosecutor does not measure up to the substantial
constitutional reasons found to be structural error in the cases listed above
(see footnote 4) . The error here did not render the trial fundamentally unfair or
4 Among those types of errors which have been found to be structural are: Sullivan v.
Louisiana, 508 U .S . 275 (1993) (defective reasonable-doubt instruction) ; Vasquez v.
Hillery, 474 U.S . 254 (1986) (racial discrimination in selection of grand jury) ; Waller
v. Georgia, 467 U .S. 39 (1984) (denial of public trial) ; McKaskle v. Wiggins, 465 U .S .
168 (1984) (denial of self-representation at trial) ; Gideon v. Wainwright, 372 U .S. 335
(1963) (complete denial of counsel) ; Tumey v. Ohio, 273 U.S . 510 (1927) (biased trial
judge) ; see Recuenco, 548 US at 219 fn 2 . See also Payne v. State of Arkansas, 356
U .S . 560 (1958) (coerced confession) .
5 KRS 62 .020(1) provides that "the official oath of any officer may be administered by:
(a) any state or federal judge with Kentucky jurisdiction [ .J" Judges in Kentucky, by
specific statute, rule, or inherent authority to operate their courts generally have
broad authority to administer oaths, but obviously lack the authority to induct new
members of the bar.
an unreliable vehicle for determining guilt or innocence . Thus, we conclude
that the error, in this case, was not structural, and is subject to harmless error
review .
Appellant has identified no prejudice whatsoever as a result of Sims's
taking the oath in means contrary to SCR 2 .120 . The manner in which he took
the oath had no effect on his trial performance or the evidence presented, and
the jury's verdict would have been the same. The status of Sims's law license
played no part at all in Appellant's conviction . Thus, the error did not
substantially sway the verdict, and is accordingly regarded as harmless . See
Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) .
Additionally, we find that the long-standing de facto officer doctrine
requires us to affirm the judgment .6 In Rice v. Commonwealth, 3 Bush 14,
1867 WL 4050 (Ky. 1867), a defendant in a criminal matter and his surety
challenged the validity of a bail bond "because the police judge [before whom
the bond was executed] had been qualified before a notary public who had no
legal authority to administer official oaths." Kentucky's then highest court
rejected the challenge, holding:
"[W]hen a man is exercising and discharging the general duties of
an office, claiming right thereto under a commission or
appointment, he is an officer de facto ; and generally, if not
universally, his acts are good as to third parties, however irregular
his appointment or qualification[ .] . . . We do not say that, even as
the police judge was acting under a regular commission and
6 See Old Republic Ins. Co. v. Ashley, 722 S .W.2d 55, 58 (Ky. App. 1986) : "[T]he
appellate court may affirm the judgment if the record on appeal discloses any
ground on which the decision could properly have been made ."
appointment, that this oath would be void ; but if it was legally
invalid as to himself, his acts as to third parties, are binding.
(emphasis added)
More recently, in Trimble County Fiscal Court v. Trimble County Bd. of
Health, 587 S.W.2d 276, 281(Ky. App. 1979), the Court of Appeals, upheld the
validity of an action of a county health board despite the disqualification of a
board member, stating, "Mrs . Harmon did not automatically forfeit and vacate
her Board membership, and that at the very least, she was a de facto member
and was entitled to perform her duties while in possession of the office . .
Mrs . Harmon was at least a de facto officer, and her vote and presence were
properly counted." The United States Supreme Court applied the de facto
officer doctrine in Ryder v. U.S., 515 U .S . 177, 180-181 (1995) :
"The de facto officer doctrine confers validity upon acts performed
by a person acting under the color of official title even though it is
later discovered that the legality of that person's appointment or
election to office is deficient . . . . The doctrine has been relied
upon by this Court in several cases involving challenges by
criminal defendants to the authority of a judge who participated in
some part of the proceedings leading to their conviction and
sentence ."
It is beyond reasonable dispute that if the defective oath-taking
invalidated Sims's admission to the bar and his office as an assistant
Commonwealth's attorney, he was, nonetheless, a defacto officer. While an
apparent violation of SCR 2 .120 may be a matter of concern to this Court in its
constitutional oversight of the practice of law in courts of Kentucky, it affords
Appellant with no legitimate complaint as to the validity of her conviction .
Appellant and the Commonwealth have directed our attention to
decisions of several states and federal courts that have considered this issue .
We are satisfied that the opinion we reach today is consistent with a clear
majority of those jurisdictions . We stand, however, not upon the numerical
superiority of the courts that agree with us, but upon the superior foundation
of law and reason upon which such decisions are based. Appellant is entitled
to no relief under this argument .
III . THE TRIAL COURT DID NOT ERR IN EXCLUDING
EVIDENCE RELATING TO HER FEAR OF THE VICTIM
As part of her case-in-chief, Appellant sought to introduce evidence
concerning Shoulders's prior drug use and prior threats of violence directed
against various other persons, but of which she was not aware . The trial court
ruled that the defense could introduce evidence of specific violent acts or
threats made by Shoulders to Appellant, but that it could not use general
reputation evidence of Shoulders's propensity to violence.? The trial court also
ruled that Appellant could introduce evidence of Shoulders's drug use in the
twenty-four hours prior to the stabbing, but could not introduce evidence
concerning her substantial prior history of drug abuse. Appellant presented
the excluded evidence through the avowal testimony of five witnesses.
A. Prior Threats Heard Bv Other Persons
7 As discussed below, the trial court's ruling excluding Shoulders's public reputation
for violence (as opposed to specific acts) was error. Appellant however, does not
raise this ruling as a point of error, and thus we deem the argument to be waived .
Avowal testimony was presented that the day before the stabbing
Shoulders stated "when I see the red bitch [referring to Appellant] I'm going to
beat her with this hammer"; that on the morning of the stabbing she was
twirling a hammer saying "I can't wait until this red bitch get up. I'm gonna
whoop her ass" ; that Shoulders frequently threatened people with a hammer;
that Shoulders always carried a weapon - usually a razor or a hammer; that
she threatened to cut people with a razor; that she once smacked a police
officer on the back; that she threatened Appellant on a constant basis ; that she
threatened a hairdresser with a hammer; that she made various other threats
to other people; and that she would call children "sissy dick bitch."
The principles relevant to prior violent acts and threats by the victim in a
self-defense case were addressed in Saylor v. Commonwealth, 144 S.W.3d 812,
815-816, (Ky. 2004), and are fairly summarized as follows . Generally, a
homicide defendant may introduce evidence of the victim's character for
violence in support of a claim that he acted in self-defense or that the victim
was the initial aggressor. KRE 404(a)(2) . Such evidence may only be in the
form of reputation or opinion, not specific acts of misconduct . KRE 405(a) . An
exception exists, however, when evidence of the victim's prior acts of violence,
threats, and even hearsay evidence of such acts and threats, is offered to prove
that the defendant so feared the victim that he believed it was necessary to use
physical force (or deadly physical force) in self-protection, "provided that the
defendant knew of such acts, threats, or statements at the time of the
encounter." Robert G. Lawson, The Kentucky Evidence Law Handbook, §
2 .15[4][d] (4th ed . 2003) . "Obviously, such evidence could not be used to prove
fear by the accused without accompanying proof that the defendant knew of
such matters at the time of the alleged homicide or assault." Id. (citing Baze v.
Commonwealth, 965 S .W.2d 817, 824-25 (Ky. 1997)). Appellant cites us to no
evidence demonstrating that, at the time she stabbed Shoulders, she was
aware of the specific acts of violence and the threats of violence described in
the avowal testimony . As such, the avowal evidence was properly excluded .
B. Prior Drug Use By Alleged Victim
Avowal testimony was also presented that Shoulders was a "crack
whore" ; that she used as much crack cocaine and marijuana as she could on a
daily basis; that she let others use her residence to get high if they would
provide her with cocaine ; that she frequently used drugs ; that she attempted to
borrow money for drugs and became angry when anyone refused her; and that
she would sell her food vouchers to get drugs.
In order to be admitted at trial, evidence must be relevant. KRE 402 .
Relevant evidence is "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." KRE 401 .
However, even relevant evidence "may be excluded if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence ." KRE 403 .
Evidence of Shoulders's habitual drug use was of minimal relevance to
any issue in the trial . Since Appellant admitted to stabbing Shoulders, the
only real factual issue was whether the stabbing occurred at Bryant's residence
with Appellant as the aggressor, or across the street in the housing project in
self-defense against Shoulders's hammer attack. The probative effect of
Shoulders's history of heavy drug use was slight or non-existent . Accordingly,
the evidence was excludable upon relevancy grounds alone.
As previously noted, however, the trial court permitted evidence of
Shoulders's drug use twenty-four hours prior to the murder. Further, medical
evidence was presented demonstrating through post-mortexn blood and urine
tests that she had recently used cocaine and marijuana . Also, Appellant
testified to Shoulders' heavy drug use . In summary, significant evidence of
Shoulders's drug use was, in fact, presented, and the jury was aware that she
.
was a habitual drug user. Additional testimony upon the issue would have
amounted to a "needless presentation of cumulative evidence." See Hillard v.
Commonwealth, 158 S .W.3d 758, 762-63 (Ky. 2005) (evidence of victim's sexual
history to prove sexual orientation was cumulative where testimony was
already elicited concerning victim's prior sexual relationship with another
witness) . We conclude that the trial court did not abuse its discretion in
excluding the additional evidence of Shoulders's prior drug use . Love v.
Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001) (trial court's KRE 401 relevancy
determinations and KRE 403 prejudice determinations are reviewed under the
abuse of discretion standard) .
IV . CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
affirmed.
All sitting. All concur .
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
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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