McQueen v. Commonwealth of Kentucky
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Appellant appealed his conviction of intentional murder and sentence of thirty-two years' imprisonment after he shot the murder victim at point-blank range in the back of her head. Appellant raised four issues on review. The court held that the trial court did not err in denying appellant's motion for a directed verdict of acquittal where, under the evidence presented, it was not clearly unreasonable for a jury to find appellant guilty and that the Commonwealth introduced more than a mere scintilla of evidence that the shooting was intentional. The court also held that the trial court did not violate appellant's right to a randomly selected jury when it dismissed a qualified juror for cause because appellant waived his jury selection argument under RCr 9.34. The court further held that the trial court did not abuse its discretion when it admitted testimony regarding appellant's harsh language and accusations of theft as it was offered as evidence of motive or absence of mistake or accident. The court finally held that the trial court did not err when it excluded certain testimony relating to appellant's demeanor following the shooting.
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RENDERED : MAY 19, 2011
TO BE PUBLISHED
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2010-SC-000186-MR
MICHAEL MCQUEEN
V.
APPELLANT
ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
NO. 08-CR-00260
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
Appellant, Mike McQueen, was convicted by a Laurel Circuit Court jury
of intentional murder and sentenced to thirty-two years' imprisonment . He
now appeals as a matter of right. Ky. Const. § 110(2)(b)
I. Background
McQueen and Christina Hodge, the victim, had a tumultuous multi-year
relationship, complete with verbal abuse, suicide attempts, and repeated theft
accusations . This turbulent relationship ended when McQueen shot Hodge, at
point-blank range, in the back of her head . She died instantaneously.
There were no witnesses to the shooting, and McQueen did not put on
any evidence at his trial. However, the jury heard McQueen's explanation of
the events through the admission of his statement to the police . McQueen
stated that on the morning of Hodge's death, he found what he believed was
her suicide note, claiming, among other things, that she did not rob him. He
then walked outside, carrying an unholstered gun in his pants, and noticed
Hodge sitting cross-legged in the grass. She again repeated that she did not
steal from him . According to McQueen, he asked her to come back inside and
attempted to help her to her feet. Although he claims to not know what
happened, he stated that when he was reaching for her shoulders, with his
hands on her jacket, the gun somehow fired a bullet into Hodge's head.
Although McQueen claimed the unholstered gun allegedly discharged by
accident, there was no bullet hole in his pants .
After the shooting, McQueen ran to his parents' nearby trailer and
conferred with his family before his brother eventually called 911 .
Expert testimony established that the victim was shot, at a fairly level
angle, through the back of her head, with the bullet piercing her spinal column
and brain stem, and eventually lodging in her cheek. A firearms expert
testified that the semi-automatic handgun McQueen used was functional and
had two safeties . The external safety, when engaged, prevents the gun from
firing; the internal safety prevents firing unless the trigger is pulled (the gun
would not fire if it was dropped) .
To undermine the credibility of McQueen's seemingly implausible
explanation, the Commonwealth put on several witnesses that testified to
McQueen's hostility toward the victim due to his suspicion that she was
stealing from him. An acquaintance of McQueen's testified that several weeks
before the shooting, McQueen told her that he was going to "blow [the victim's]
brains out" because she was stealing from him . Furthermore, just hours
before the shooting, McQueen told the victim's son, "You'd better tell your mom
to stop stealing off me, or I'll break her face to where you can't tell she's
human ." Finally, Jeff Sweeney, who visited the house two days prior to the
shooting, testified that he observed McQueen's hostile behavior toward the
victim . According to this testimony, Hodge entered the kitchen area to get a
soft drink, but McQueen, still angry that she was stealing from him, ordered
her to "get the f--- back in" the other end of the trailer.
The jury presumably did not believe McQueen's version of events-that
the gun just went off and shot the victim through the head-and found him
guilty of intentional murder.
On appeal, McQueen raises four issues for our review. He contends that
the trial court erred when it failed to direct a verdict of acquittal for the offense
of intentional murder; that the trial court violated his right to a randomly
selected jury when it dismissed a qualified juror for cause; that the trial court's
erroneous admission of unrelated bad acts denied him his right to a fair trial;
and, that the trial court's exclusion of evidence relating to his demeanor
following the shooting denied his right to present a complete defense . . We find
these contentions without merit, and detail our reasoning below.
II. Analysis
A. Directed Verdict
McQueen argues that the trial court deprived him of due process of law
when it failed to direct a verdict of acquittal for the offense of intentional
murder . He claims that the evidence did not support purposeful behavior,
highlighting his self-serving statements that he tried to perform CPR and went
for help after the shooting. Additionally, he notes that he had no gunshot
residue on his hands, but that the victim did.' Accordingly, he claims that the
Commonwealth's evidence failed to indicate he intentionally murdered the
victim . Because the "evidence did not support a finding beyond a reasonable
doubt that the shooting was intentional," McQueen claims we must reverse .
We disagree .
The well-settled standard of review under which we evaluate a denial of
directed verdict is much more deferential than the standard McQueen exhorts .
When considering a motion for directed verdict :
[T]he 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 .
This claim is undeveloped in McQueen's brief and presumably also at trial, due to
his failure to put on any direct evidence . However, he concedes that gunshot
residue can be transferred to a person in close proximity to a discharged firearm .
The Commonwealth counters by pointing out that there was a delay between the
shooting and the 911 call and further notes that gunshot residue can easily be
removed by washing, wiping, or placing one's hands in his pockets.
Commonwealth v. Benham, 816 S .W.2d 186, 187 (Ky. 1991) . On appellate
review, we affirm the trial court's denial of a directed verdict "[i]f under the
evidence as a whole it would not be clearly unreasonable for a jury to find the
defendant guilty . . . ." Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983) . We
went on in Benham to further clarify the minimal burden to withstand a
directed verdict motion, stating that "the trial court is expressly authorized to
direct a verdict for the defendant if the prosecution produces no more than a
mere scintilla of evidence." Benham, 816 S .W.2d at 187-88 (emphasis added) .
In applying this standard to the present case, we conclude that the trial
court did not err in denying McQueen's motion for directed verdict . As detailed
in the facts, the jury heard testimony that McQueen suspected the victim was
stealing from him and he told two witnesses that he was going to "blow [her]
brains out" and "break her face" beyond the point of recognition . There was
also expert testimony suggesting that McQueen's purported accidental
discharge story was implausible . A firearms expert testified that the internal
safety would prevent firing, unless the trigger was pulled (with eight pounds of
pressure) . The medical examiner testified that the bullet trajectory was
relatively level, not at a forty-five degree angle. This statement further
undermines McQueen's claim that the gun fired while on his beltline area,
when he was standing over the victim attempting to help her up.
Consequently, we hold that under the evidence presented, it was not
"clearly unreasonable for a jury to find the defendant guilty" and that the
Commonwealth introduced more that a "mere scintilla of evidence" that the
shooting was intentional .
B. Juror Selection
McQueen next alleges error occurred during the jury selection phase;
thus, we pause to develop several additional facts necessary to properly
address this allegation. During jury orientation, the trial court qualified the
pool after examining them to ensure they met the basic criteria (e.g., U.S .
citizen, English speaker) . The court inquired whether anyone was a convicted
felon not pardoned by the Governor. Juror S.S . affirmatively acknowledged he
was, although he informed the court that his civil rights had been restored .
Nonetheless, the trial court excused S .S ., erroneously believing that absent a
gubernatorial pardon, a convicted felon is an unqualified juror. Neither of the
parties was present during this preliminary qualification phase, thus no
objection was made.2
McQueen argues that this excusal violated his right to a randomly
selected jury. He correctly notes that the statute, amended in 2002, currently
states that a juror is unqualified if he "[h]as been previously convicted of a
felony and has not been pardoned or received a restoration of civil rights by the
Governor or other authorized person of the jurisdiction in which the person
was convicted ." KRS 29A.080(2)(e) (emphasis added) . McQueen contends that
the court's erroneous excusal of Juror S . S., a qualified juror, destroyed the
randomness of the jury pool and was a substantial deviation from jury
2 Jury orientation and qualification was recorded .
selection procedures . Furthermore, he asserts that this error was incapable of
preservation, since his counsel was outside the courtroom negotiating a plea
deal when this excusal occurred, and, even if present, he would not have been
able to object since this excusal occurred at a private bench conference. We
disagree .
Initially we note that the Administrative Procedures of the Court of
Justice have not been amended and still state that a prospective juror is not
qualified if he "[h]as been previously convicted of a felony and has not been
pardoned by the governor or other authorized person of the jurisdiction in
which the prospective juror was convicted ." Part II, Section 8(2)(e) . However,
we need not resolve this inconsistency since McQueen failed to raise the
irregularity prior to his examination of the jurors. RCr 9 .34 states that "[a]
motion raising an irregularity in the selection or summons of the jurors or
formation of the jury must precede the examination of the jurors." However, in
extrapolating from some of our early and mid-20th Century opinions, the Court
of Appeals cogently noted that a jury selection challenge is not waived if
counsel "neither knew nor by the exercise of reasonable diligence could have
known of the grounds for challenge before the jury was accepted." Bartley v.
Loyall, 648 S.W.2d 873, 876 (Ky. App. 1982) (discussing cases) .
We adopt this
equitable caveat to RCr 9 .34, and turn to the present case to determine
whether the caveat is applicable .
After examining the particular circumstances, we hold that McQueen's
failure to challenge the panel prior to examination of the jurors, thus waiving
any jury selection issue under RCr 9 .34, cannot be saved by the equitable
caveat. Through the exercise of reasonable diligence, McQueen's counsel could
have discovered the disqualification of Juror S.S . prior to examining the jurors.
For instance, McQueen's counsel could have learned of the disqualification by
simply walking into the courtroom and observing these non-secretive
proceedings . Alternatively, McQueen's counsel could have obtained this
disqualification information from Juror S .S .'s qualification form. 3 Thus,
McQueen had several available methods to learn of S.S .'s disqualification and
cannot claim that he was unable to acquire this information through the
exercise of reasonable diligence . As such, we hold that McQueen waived his
jury selection argument . RCr 9 .34
Notwithstanding the waiver, we would not reach a different result if we
were to address the merits of McQueen's argument . There is not a shred of
evidence in this case that Juror S.S . would have been assigned to McQueen's
jury panel, that he or she would have not have been stricken by the parties
during voir dire, or that he or she would have actually served on the petit jury.
Any argument to the contrary is mere conjecture.
The Administrative Procedures of the Court of Justice require each juror to fill out a
qualification form . Part II, Section 7(1) . If the juror is disqualified, the judge enters
this information on the qualification form. Part II, Section 8(1) . And finally, parties
and their attorneys have access to these qualification forms. Part II, Section 7(7) .
McQueen seems to be suggesting adoption of a sweeping per se rule that
treats all selection irregularities as reversible, regardless of how detached any
imprecision is from the defendant's case. We reject this approach, and as our
recent jurisprudence indicates, require a more tangible correlation between an
alleged error and the prejudicial effect to this defendant . In Gabbard, a case
much further down the procedural line than the present one, the trial court's
failure to properly strike a juror for cause is non-prejudicial unless the
defendant can show that the juror he would have used a peremptory strike on
actually served on thejury. Gabbard v. Commonwealth, 297 S.W.3d 844, 854
(Ky. 2009) .
Furthermore, adoption of a per se rule and its application to this case, as
the Commonwealth persuasively notes, would mandate reversal of every case
decided by this venire, and the quashing of all indictments from the grand jury
drawn from this venire . Such a result would be catastrophic and would wreak
havoc, prospectively, to our justice system.
Finally, before we address McQueen's next point of error, we pause
briefly to clarify the effect of a RCr 9 .34 waiver . It appears that a couple of our
cases suggest that if a challenge to the composition of the panel is first raised
on appeal or untimely, we review for "actual prejudice ." Bowling v.
Commonwealth, 942 S .W.2d 293, 304 (Ky. 1997) ; see also Hall v.
Commonwealth, 2001-SC-0814-MR, 2003 WL 21254856 (May 22, 2003) . At
the root of the problem appears to be the Bowling Court's misunderstanding of
some language in Sanders v. Commonwealth, 801 S.W.2d 665 (Ky . 1990) .
In Sanders, we repeated the basic assertion that our general standard of
review for unpreserved error requires a showing of prejudice, i.e., palpable
error. Sanders does not so much as mention RCr 9 .34, and instead deals with
voir dire proceedings ; thus, it is inapplicable to panel challenges arising during
such an early stage of the jury selection process . Permitting a review for
"actual prejudice" in the complete absence of any challenge to the selection of
the jury panel would render RCr 9 .34's waiver effective in name only, as we
would then be bound to review the litigant's newly-raised challenge to the
panel . See Stroud v. Commonwealth, 922 S .W .2d 382 (Ky. 1996) (properly
applying RCr 9 .34's waiver and only addressing the merits in dicta) . Therefore,
a timely challenge to the panel must be made in accordance with RCr 9 .34 or it
is waived; we thus overrule Bowling and Hall to the extent that they conflict
with this opinion .
C. Character Evidence
McQueen next argues that the trial court deprived him of a fair trial
when it overruled his objection and admitted unduly prejudicial character
evidence against him. As stated above, Sweeney testified that he visited
McQueen's trailer two days before the shooting and observed McQueen order
the victim to "get the f--- back in" the other part of trailer while she was
attempting to get a soft drink out of the refrigerator . Sweeney also testified
that McQueen angrily informed him that the victim was stealing from him, and
that McQueen had a firearm sitting on the kitchen table . McQueen asserts
that this was propensity evidence inferring that because he abused the victim
and possessed a gun, he acted in conformity therewith when he shot her.
Accordingly, he claims that this testimony ran afoul of KRE 404(b) and did not
qualify for any of the KRE 404(b)(1) exceptions . We disagree .
Our evidentiary rules generally forbid character evidence to prove that
the person acted in conformity therewith ; however, that evidence is admissible
if offered to show "motive . . . [or] absence of mistake or accident . . . ." KRE
404(b)(1) . We review the trial court's application of that evidentiary rule for an
abuse of discretion . Anderson v. Commonwealth, 231 S .W.3d 117, 119 (Ky.
2007) .
As the Commonwealth correctly notes, the singular issue in this case
was whether McQueen intentionally shot the victim. That McQueen, two days
before he "accidentally" shot the victim in the back of the head, was upset
because he believed the victim was stealing from him is proof supporting the
inference that the shooting was not a mistake or accident. Furthermore, that
evidence could also be considered by the jury as a potential motive for
intentionally shooting the victim . Therefore, we conclude that the trial court
did not abuse its discretion in admitting Sweeny's testimony regarding
McQueen's harsh language and accusations of the theft, as it was offered as
evidence of motive or absence of mistake or accident.
Finally, McQueen's argument that the firearm sitting on the kitchen table
demonstrated a violent propensity is nonsensical . We fail to see any merit in
the argument that the testimony regarding his firearm possession alone, inside
his house, demonstrates a violent predisposition that infers he acted in
conformity therewith when he shot the victim. Furthermore, KRE 404(b) by its
very terms is limited to evidence of "other crimes, wrongs, or acts ." Sweeney's
testimony that there was a firearm sitting on the kitchen table is not evidence
of "other crimes, wrongs, or acts ."4
Consequently, we hold that the trial court did not abuse its discretion
when it admitted Sweeney's testimony .
D. Exclusion of Demeanor Evidence
In McQueen's final argument, he contends that the trial court erred
when it excluded evidence of his demeanor following the shooting.
During the
cross-examination of McQueen's brother, Scott (a witness for the
Commonwealth), McQueen's counsel asked, "Well, knowing your brother and
watching him that morning, were his actions consistent with an accident?"
Scott responded, "Yes ." The trial court sustained the Commonwealth's
4 McQueen's attempted parallel to the facts in Arnett v. Commonwealth, 470 S.W.2d
834 (1971) is unpersuasive. Arnett, a pre-rules case, dealt with "other crimes"
evidence stemming from the appellant's "flourishing" a gun at a third party (a violation
of the now repealed KRS 435 .200) .
objection and admonished the jury. As a result, McQueen contends that he
was denied a right to present a complete defense .5 We disagree .
KRE 701 permits lay witnesses to testify to opinions based on their
perceptions, but they are not permitted to testify regarding another person's
state of mind. An exception--the collective facts rule-exists when, based on
the witness's own perceptions, the "witness is expressing an opinion about
another's mental conditions and emotions as manifested to that witness ."
Gabbard v. Commonwealth, 297 S.W.3d 844, 855 (2009) (internal quotations
omitted) . However, "[n]o such opinion should be admitted unless it is
descriptive of the perceptions of the testifying witness (`short hand renditions) 6
and none should be admitted when the witness can fully describe those
perceptions without resort to opinion ." Robert G. Lawson, Kentucky Evidence
Law Handbook § 6 .10[4], at 421 (4th ed . 2003) . There are a few very limited
"situations in which observations of another's appearances and behaviors
could produce a perception about the person's state of mind that would be
reliable enough to aid jurors and that could not be communicated by the
observer without resort to conclusory language (`she seemed to know the
victim') ." Id . at 420.
In Gabbard v. Commonwealth, we addressed an argument nearly
identical to that presented by McQueen . Gabbard claimed he accidently shot
5
McQueen gives mere lip service to the constitutional aspects of this argument and
focuses on the trial court's evidentiary ruling . From all outward appearances, this is
an abuse of discretion argument cloaked in general constitutional terms .
6 This is also known_ as the collective facts rule or doctrine . See Gabbard, 297 S.W.3d
at 855 .
13
his girlfriend while cleaning his gun, and sought to have the victim's daughters
(who were in another room of the house during the shooting) testify that they
told the police the shooting was accidental. Although the daughters observed
Gabbard and the victim both before and after the shooting, the witnesses'
perception of the shooting itself was limited to hearing the gunshot . As a
result, we stated that there was insufficient evidence based on the collective
facts for the witnesses to properly testify regarding Gabbard's mental state at
the time of the shooting. We held that such testimony was inadmissible
without something additional evincing an accident (e.g. hearing Gabbard trip or
exclaim in a surprised manner) "because it could not be said that the opinion
can be drawn from the perceptions without irrational leaps of logic or that the
opinion is one which a normal person would draw on the basis of the observed
facts ." Gabbard, 297 S.W .3d at 856 (internal citations and quotations omitted) .
Here, like the daughters in Gabbard, Scott was essentially attempting to
testify that based on McQueen's demeanor, the shooting was an accident .
However, compared to Gabbard, McQueen has an even weaker argument that
Scott had sufficient knowledge of the collective facts necessary to opine
regarding McQueen's mental state during the shooting. Scott had absolutely
no perception of the shooting or the victim, nor did he observe McQueen before
or immediately after the event.? Thus, based on his minimal knowledge of the
collective facts, Scott's conclusion that McQueen's demeanor indicated he
7 He arrived at his parents' house minutes after the shooting .
14
accidentally shot the victim cannot be adduced from his "perceptions without
irrational leaps of logic ."
Furthermore, we fail to see how a person may accurately perceive the
manifestation of emotions suggestive of an accidental shooting. Perhaps
McQueen's distraught, shaken up, and suicidal demeanor after the shooting
suggests an accident, but it could just as likely imply a range of other
emotions, including guilt due to his intentional behavior, sadness about the
death, or the feeling of doom with impending arrival of the police . Accordingly,
Scott's conclusory testimony regarding McQueen's state of mind during the
shooting was not "reliable enough to aid jurors" nor that "which a normal
person would draw on the basis of the observed facts."
Lawson, Kentucky
Evidence Law § 6.10[4], at 420; Gabbard, 297 S.W.3d at 856. Finally, we
believe Scott's perceptions (McQueen was upset, shaken up, suicidal) can be
expressed without "resort to opinion" (the shooting was accidental) regarding
McQueen's mental state during the shooting. See Lawson, Kentucky Evidence
Law § 6 .10[4], at 421 (stating a witness's lay opinion of another's mental state
should not be admitted when "witness can fully describe [his] perceptions
without resort to opinion .") .
As a result of the above analysis, we hold that the trial court did not err
when excluding Scott's testimony and again reiterate that a defendant's right to
present a defense is not unlimited but subject to the dictates of our well-
established evidentiary rules, which are a function of our Legislature's broad
constitutional latitude . U.S. v. Scheffer, 523 U.S . 303, 309 (1998) .
III . Conclusion
For the foregoing reasons, we affirm the decision of the trial court.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive, Suite 200
Frankfort, KY 40601
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