Opinion
NO. 2017-CA-000025-MR
06-29-2018
ANTHONY L. CHINN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Adam Braunbeck Louisville Metro Public Defender's Office Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NOS. 14-CR-003379 & 15-CR-002662 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE: This appeal arises from a judgment by the Jefferson Circuit Court following a jury verdict convicting Appellant, Anthony L. Chinn, of tampering with physical evidence. Chinn argues that the trial court erred in its instructions to the jury on the charge and, consequently, the verdict should be reversed. After a careful review of the record, we find that the trial court's instructions were substantially accurate, and Chinn has failed to show that his substantial rights were affected by the wording of the instruction.
Background
The grand jury indicted Anthony Chinn on several charges including: attempted murder, assault, robbery, criminal mischief, and the tampering with physical evidence. The charges arose from the events of November 11, 2014, which began with Chinn standing on a porch with his friends when Jacobe Daugherty pulled up in his van. Chinn owed Daugherty $1,200. Daugherty confronted Chinn concerning payment and their argument soon became physical. Daugherty drew a gun from his waistband but Chinn wrestled it out of his hands. Chinn used the firearm to shoot Daugherty twice.
Despite being shot, Daugherty threw Chinn through a neighboring fence and took back the firearm. Chinn fled the scene to his girlfriend's home nearby. A standoff with the police ensued, with Chinn refusing to leave his girlfriend's home and cooperate with the officers. While he was inside the home, Chinn removed the clothes he was wearing during the altercation. He placed them inside the washing machine and washed them.
At trial, the jury acquitted Chinn on the attempted murder, assault, robbery, and criminal mischief charges. The jury convicted him, however, of tampering with physical evidence because he washed his clothing during the standoff. The trial court gave the following instruction to the jury for tampering with physical evidence charge:
You will find the Defendant, Anthony Chinn, guilty of Tampering with Physical Evidence if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Jefferson County, Kentucky, on or about the 11th day of November, 2014, he concealed, removed, and/or altered clothing, which he believed was about to be produced or used in an official proceeding;
AND
B. That he did so with the intent to impair its verity or availability at the official proceeding.
Based upon Chinn's status as a persistent felony offender, the jury fixed his sentence at a total of fifteen years' imprisonment. This appeal follows.
Standard of Review
Chinn concedes that his trial counsel did not object to the instruction given by the trial court, nor did he tender an alternate instruction reflecting his current position. Chinn's counsel had a duty to inform the trial court of its preferences regarding the giving of the jury instruction and are barred from appellate review under RCr 9.54. Consequently, any defect in the content of the instruction is not preserved for review.
Kentucky Rules of Criminal Procedure. --------
However, unpreserved allegations of defects in the jury instruction are reviewable for palpable error. RCr 10.26. "Once the trial judge is satisfied that it is proper to give a particular instruction, it is reasonable to expect that the instruction will be properly given." Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). Therefore, the content of jury instructions is an issue of law that is subject to de novo review by this Court. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
We must review the instructions to see if there was a palpable error that resulted in manifest injustice. That is, we must determine that, if there was an error, it affected the substantial rights of the Appellant. We may grant relief if, upon consideration of the whole case, the error "seriously affected the 'fairness, integrity, or public reputation of the proceeding."' Newcomb v. Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (quoting Johnson v. United States, 520 U.S. 461, 462, 117 S.Ct. 1544, 1545, 137 L.Ed.2d 718 (1997)). In other words, we may grant relief if there is a substantial possibility that the result would have been different had the alleged error not occurred. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
Analysis
Chinn contends that the jury instructions given by the trial court do not conform to the necessary standards. Specifically, he believes the jury should have been instructed to first decide beyond a reasonable doubt whether the clothing was physical evidence. Additionally, Chinn believes that the definition of "physical evidence" should have been included in the instructions. He contends that in not doing so, the court committed a palpable error that led to manifest injustice.
KRS 524.100 defines tampering with physical evidence as follows:
(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes, or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding;
or
(b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered.
(2) Tampering with physical evidence is a class D felony.
Kentucky has long endorsed the "bare bones" framework of jury instruction. Hilsmeier v. Chapman, 192 S.W.3d 340, 344 (Ky. 2006). Jury instructions should "not contain an abundance of detail, but should provide only the bare bones of the question for jury determination." Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981). In criminal cases, the instructions "should conform to the language of the statute[]" and be fleshed out in the record. Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006). Jury instructions are proper if they correctly advise the jury about what it must believe from the evidence to return a verdict in favor of the party who bears the burden of proof. The instructions must only "accurately incorporate[] all the elements of the crime[.]" Martin, 409 S.W.3d at 347.
The Kentucky Supreme Court has endorsed the model instruction for tampering with physical evidence set out in Cooper, Kentucky Instructions to Juries. Owens v. Commonwealth, 329 S.W.3d 307, 316 (Ky. 2011). Section 7.63 of Kentucky Instructions to Juries provides the following model for tampering instructions:
You will find the Defendant guilty of Tampering with Physical Evidence under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:The question is whether the trial court was in error for using the term "clothing" in the jury instructions instead of "physical evidence." The instruction given by the trial court did not rise to the level of palpable error.
A. That in this county on or about ___ (date) and before the finding of the Indictment herein, he [altered] [destroyed] [concealed] [removed] ___ (ID evidence) which he believed was about to be produced or used in ___ (ID proceeding);
AND
B. That he did so with the intent to impair its [accuracy] [availability in the proceeding].
In Owens, the court endorsed the aforementioned model jury instruction and, in doing so, they accepted that the item in questions should be mentioned, by name, in the instructions. Jury instructions require "identification of the particular item or items which, according to the proof, would qualify as physical evidence supporting the charge." Owens, 329 S.W.3d 307 at 316 (footnote omitted).
The facts of Owens differ from those before this court. In that case, the jury was instructed to find the defendant guilty if he "concealed and/or destroyed evidence...." Id. (emphasis in original). The instruction did not include a definition for "evidence." It was held that the instructions were erroneous because they failed to identify the piece of evidence that the jury was to review. Id. The instructions were not specific enough. Id.
Here, the trial court's instructions to the jury clearly identified the physical evidence in question. It is established in the record that, during the standoff with the police, Chinn removed the clothes he was wearing during the altercation and placed them in the washing machine. Additionally, the prosecution fleshed out the instructions in the record by referring to the clothing in the washing machine. The instructions were clear and accurately incorporated all the elements of KRS 524.100. Unlike Owens, the instructions in this case specified the evidence in question.
Chinn suggests that the Court should consider a footnote in Owens stating, "In the unusual circumstance that a question of fact arises about whether an item is 'physical evidence,' the instruction should still identify the item in question, and simply add an element to the above model instruction that requires the jury to determine if that item is 'any article, object, document, record, or other thing of physical substance.'" Id. at 316 n.4. (Internal citations omitted). We reject this argument. Chinn has not shown that this case qualifies as an "unusual circumstance" where a question of fact has arisen. Id.
The clothing in this case is an "article of physical substance" under the statutory definition. The clothes were physical objects that were worn during the altercation. Chinn put the clothes in the washing machine during a police standoff. His urgency to alter or hide the clothing shows that the items had significance at trial and he could have expected them to be admitted as evidence. Furthermore, it is the same case that Chinn relies on, Owens, that endorses the jury instruction model that the trial court used. Therefore, the trial court did not error under this argument.
Chinn insists that "physical evidence" should have been defined in the jury instructions. This is not required. "Physical evidence" is not a term of art that needs to be distinguished from its common usage. Chinn has not provided any support that the statutory definition gives a different meaning to the term than its plain understanding nor are there any unusual facts in this case that would render the term unclear to the jury.
Furthermore, we disagree with Chinn that his acquittal on the other charges precludes a conviction for tampering. Chinn asserts that he cannot be charged for tampering with evidence for "crimes that never occurred." The charges relating to the altercation involved separate facts and elements from the tampering charge. "Each count in an indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932).
Even though Chinn had valid defenses to those charges, the clothing which he was wearing contained physical evidence relating to the altercation and his defenses. By placing the clothing in the washing machine, he impaired the availability of that evidence for the later police investigation and any criminal proceedings. The jury's decision to acquit Chinn on the other counts, but convict him for tampering with physical evidence was not irrational. United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984). Therefore, the verdict was not inconsistent with the acquittal of other charges.
Lastly, even though we find no error in the trial court's instructions, had there been an error, it would have been a harmless one and would not have resulted in manifest injustice. Had the jury instructions added the additional element, the jury would have likely found that the clothing was, indeed, physical evidence under the statutory definition. Identifying the evidence made the instructions clearer for the jury and is the custom practice in the Commonwealth. Thus, the failure to separately define the term "physical evidence" did not infringe upon Chinn's substantial rights.
In sum, trial courts must "refrain from elaborating on an abundance of detail, but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties." Office, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005). The trial court followed the Kentucky standard of jury instructions for tampering and struck the proper balance required under the law. Therefore, we find no basis to set aside Chinn's conviction.
Conclusion
For the reasons stated herein, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Adam Braunbeck
Louisville Metro Public Defender's
Office
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky