Opinion
NO. 2015-CA-001647-MR
06-16-2017
AARON COPASS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Lauren R. Brooke Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 15-CR-00070 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. LAMBERT, D., JUDGE: Aaron Copass appeals from a Fayette Circuit Court judgment after he was convicted by a jury of burglary in the first degree and assault in the fourth degree (domestic violence minor injury). We affirm.
At the time of his trial, Copass was a University of Kentucky senior and a member of the National Guard who had served active duty in Iraq. He was employed as a bouncer at a bar. He and the victim, Amanda Fogle, had previously been in a romantic relationship, and lived together until he moved out in February 2014. They renewed their relationship in September of that year, but did not resume living together.
In November, Copass and Fogle acquired a pit bull named Jax. Copass claims that the dog was his, because he paid for the dog, its veterinary bills and other costs. He and Fogle agreed that she generally took care of the dog during the day because she worked as an administrative assistant at the apartment complex where she and the dog lived. Fogle gave Copass the key to the apartment and he came by daily to help care for the dog. According to Fogle, she always knew when Copass was coming over. The dog also stayed at Copass's apartment.
At 2:08 a.m., after finishing his shift at work, Copass texted Fogle that he would be over in the morning to get his dog. Fogle replied with a text message stating "Come sleep with me" and "Come and get him now . . . He's crying" in reference to the dog. A text message exchange then ensued in which Copass texted that he was on his way. Fogle responded, "You're not taking him" and a series of texts followed in which the couple quarreled initially over who would take the dog and then over their relationship. Fogle texted, "Why didn't you just tell me you didn't want to be with me?" and "You put the idea of a ring in my head just to drop me on my ass?" Copass responded, "You dropped me lol," and Fogle replied, "No I didn't . . . I just asked you to come sleep with me" and "I'm still in love with you" and "Why don't you want to be with me?"
When Copass arrived at the apartment, he banged loudly on the door, shouting at Fogle to let him in. He also texted, "Let me in." Fogle texted, "Break down the door." Copass used his key to unlock the door, but one of the two additional safety locks was latched. Fogle could see the screws attaching the latch coming loose as Copass tried to enter. She managed to push the door shut and engaged the second latch. She called 911 on her cell phone as Copass finally broke through the second lock and forced his way into the apartment. Fogle threw her phone at him and screamed. The two struggled and Fogle received injuries to her face, her wrist and thumb, and bruises to her body. Copass placed his hand over her mouth at one point. Fogle could not breathe and had to bite Copass to get him to remove his hand.
When the police arrived, they interviewed Fogle and Copass separately. Copass told them that Fogle had changed her story and was trying to keep him from coming into the house. He later told police that she changed her mind and that he accidentally broke both locks.
Copass was indicted for first-degree burglary and fourth-degree assault. Following a jury trial, Copass was convicted of both charges and this appeal followed.
Copass's first two arguments on appeal concern the jury selection: first, that the trial court abused its discretion in failing to strike for cause a juror who was a police officer and, second, that he was denied a fair and impartial jury when the trial court did not strike several jurors who were victims of burglary or domestic violence. In his third and final argument, he contends that he was entitled to a directed verdict on the charge of burglary in the first degree due to an insufficiency of evidence.
Copass moved to strike Juror 4468 for cause on the grounds that he was a police officer employed by the Lexington Police Department. The trial court refused to strike the juror, but Copass did not utilize a peremptory strike to remove him from the jury. Copass did not object to any other jurors for cause and used all nine of his peremptory strikes to remove jurors other than Juror 4468. He argues that Juror 4468 should have been stricken for cause because he knew and worked with the officers involved in investigating Copass's case.
A trial judge is required to excuse a juror for cause when "there is reasonable ground to believe that the prospective juror cannot render a fair and impartial verdict." Kentucky Rules of Criminal Procedure RCr 9.36(1). "It is well-established in Kentucky that a determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination." Ordway v. Commonwealth, 391 S.W.3d 762, 781 (Ky. 2013) (internal citation and quotation marks omitted).
The Commonwealth argues that Copass's argument is inadequately preserved because he did not use a peremptory strike to remove Juror 4468. We agree, although our case law is premised on the more commonplace situation of a defendant who, having used a peremptory strike to remove a juror whom he has unsuccessfully sought to remove for cause, is consequently deprived of one of his peremptory strikes. "To properly preserve error based on a trial court's failure to strike a juror for cause, a defendant must at the very least challenge the juror for cause. . . . Beyond that, the defendant must also move to excuse that juror and exhaust all of his peremptory challenges." Gabbard v. Commonwealth, 297 S.W.3d 844, 854-55 (Ky. 2009). Further, "to complain on appeal that he was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck." Sluss v. Commonwealth, 450 S.W.3d 279, 284 (Ky. 2014).
If an abuse of discretion is found in failing to strike a juror for cause, the trial court will not be reversed unless the party had to use a peremptory challenge to strike the juror and, in fact, used all his peremptory challenges[.] We have held that this requirement exhausting one's peremptory challenges is predicated on the idea that peremptory strikes are a substantial right given to the defendant because, if the defendant had to use all of his peremptory strikes to remove a juror that should have been stricken for cause, a juror that he otherwise would have stricken would have been impaneled on the jury. For this reason, the jury could never be completely fair to the defendant since he was not able to effectively exercise his right to choose jurors.Ordway, 391 S.W.3d at 781 (internal citations and quotation marks omitted).
Copass did object to Juror 4468 for cause, but did not use a peremptory strike to remove him, nor has he explained why he used all of his peremptory strikes to remove jurors whom he did not challenge for cause. He has not shown that he was not able to exercise his right to choose jurors. Our approach would be different if Copass had used all of his peremptory strikes to remove jurors to whom he objected for cause, and was forced to accept Juror 4468 because he had exhausted his peremptory strikes. "Generally, a party is estopped from asserting an invited error on appeal. Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011). "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to [Kentucky Rules of Criminal Procedure] RCr 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008). Copass has not asked this court for palpable error review, and under the facts of this case we will not do so sua sponte. Hurt v. Commonwealth, 409 S.W.3d 327, 330 (Ky. 2013).
Copass further argues that he was denied a fair and impartial jury when the trial court did not strike several jurors who were victims of burglary or domestic violence. Copass concedes that he failed to object to these jurors. He acknowledges that the error is unpreserved and consequently seeks palpable error review. RCr 10.26 permits unpreserved error to be reviewed if it affected "the substantial rights" of a defendant and resulted in "manifest injustice." Under our case law, however, a failure to challenge a juror for cause constitutes a waiver of the alleged error on appeal. "The rule is well settled that a challenge to a juror for cause must be made before the trial. The general rule is that objection to a juror because of his disqualification is waived by a failure to object to such juror until after verdict." Pelfrey v. Commonwealth, 842 S.W.2d 524, 526 (Ky. 1992). Copass "cannot now assert for the first time on appeal grounds for disqualification of a prospective juror which he was fully aware of before the trial below. See Polk v. Commonwealth, 574 S.W.2d 335, 336-37 (Ky.App. 1978) ("When bias is apparent or known before trial, and a juror is permitted to remain, the objection to the juror is waived.")." Caraway v. Commonwealth, 459 S.W.3d 849, 852 (Ky. 2015).
Thirdly and finally, Copass argues that he was entitled to a directed verdict on the first-degree burglary charge due to an insufficiency of the evidence.
"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." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The evidence presented by the prosecution must be more than a mere scintilla. Id. at 188.
A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal[,] i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.Acosta v. Com., 391 S.W.3d 809, 817 (Ky. 2013) (quoting Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky. 1978)).
In order for a person to be found guilty of burglary in the first degree, the Commonwealth must prove that
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:
Kentucky Revised Statutes (KRS) 511.020(1).(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
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.
Copass argues that he had permission to enter Fogle's apartment, as shown by the fact that he had a key and went there daily. He claims that he did not knowingly enter the apartment unlawfully and that he believed at all times that he had permission to be in the apartment. He points out that Fogle invited him over and never told him to leave the apartment. He contends that there is no evidence to suggest he entered the apartment to commit a crime; he only entered in an attempt to get his dog. He contends that any inference that he did not have permission to enter the apartment and unlawfully remained there to commit a crime was purely speculative on the part of the jury. He points out that the indictment did not indicate what crime he intended to commit when he entered.
A reasonable jury could determine that Copass's breaking down the door indicated that he knew he did not have permission to enter the apartment, especially when Fogle managed to shut the door against him and secure the second lock. Furthermore, even if he believed he could lawfully enter the apartment, a reasonable jury could conclude that Fogle terminated permission when she threw her phone at him and screamed. The jury could also reasonably infer that Copass forced his way into the apartment with the intent to commit assault against Fogle, or remained there unlawfully with that intent, because upon gaining entry, he did not take the dog and leave. Instead, he pushed Fogle down, took her phone, and inflicted bruises on her face and body. Fogle was frightened as evidenced by her screams, which were heard by a neighbor who contacted the police. In light of these facts, a reasonable jury could find that Copass entered the apartment with the intent of committing a crime.
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Lauren R. Brooke
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky