Opinion
NO. 2015-CA-001580-MR
03-24-2017
ROSS GOODAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 14-CR-00378 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. KRAMER, CHIEF JUDGE: Ross Goodaker appeals the Christian Circuit Court's judgment convicting him of first-degree robbery and trafficking in marijuana under eight ounces. After a careful review of the record, we affirm because the circuit court had no duty to instruct the jury on first-degree wanton endangerment, and it did not abuse its discretion in denying Goodaker's motion to sever or in denying his motion to strike the juror for cause.
I. FACTUAL AND PROCEDURAL BACKGROUND
Goodaker was indicted on the charges of first-degree robbery and trafficking in a controlled substance within 1,000 feet of a school. He moved to sever the counts against him, contending that the trafficking charge resulted from the execution of a search warrant at his apartment concerning the robbery, and that the evidence supporting the trafficking charge was found during the execution of that search warrant. The circuit court denied the motion to sever after finding there would be no prejudice to Goodaker if the charges were tried together.
A jury trial was held, and during voir dire Goodaker moved to strike a juror for cause. That juror was a neighbor of the circuit court judge presiding over the trial. The court denied Goodaker's motion to strike. Goodaker used all of his peremptory strikes, but he did not use a peremptory strike to strike that particular juror.
Goodaker also requested that the jury be instructed on both intoxication and first-degree wanton endangerment. Of these two, the circuit court only instructed on intoxication, in addition to its other instructions. Goodaker was ultimately convicted of first-degree robbery and of trafficking in marijuana under eight ounces. He was sentenced to serve fifteen years of imprisonment for the robbery conviction and twelve months of imprisonment for the trafficking conviction.
The indicted charge of trafficking in a controlled substance within 1,000 feet of a school was amended down by the circuit court to trafficking in marijuana under eight ounces, according to the circuit court's docket sheet.
Goodaker now appeals, contending that the circuit court erred in: (a) not including an instruction on first-degree wanton endangerment as a lesser-included offense of first-degree robbery; (b) not severing the trafficking in marijuana count; and (c) failing to strike for cause the judge's neighbor when she appeared in the venire.
II. ANALYSIS
A. FAILURE TO INSTRUCT JURY
Goodaker first alleges that the circuit court erred when it did not include an instruction on first-degree wanton endangerment as a lesser-included offense of first-degree robbery. He argued in the circuit court that if the jury were to be instructed on intoxication, then the jury should also be instructed on first-degree wanton endangerment because if the jury found that he was intoxicated during the robbery, this would negate the element of intent necessary to convict him of first-degree robbery. Goodaker asserted that first-degree robbery without the intent to commit a theft is wanton endangerment. The circuit court granted his request to instruct the jury on intoxication, but it denied his request to instruct on first-degree wanton endangerment, reasoning that there was no evidence to support a wanton endangerment instruction.
We review a "trial court's decision not to give a jury instruction . . . for [an] abuse of discretion." Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2010) (citation omitted). "In a criminal case it is the duty of the court to prepare and give instructions on the whole law and this rule requires instructions applicable to every state of case deducible or supported to any extent by the testimony." Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954) (citations omitted).
However, the trial court has no duty to instruct on theories of the case that are not supported by the evidence. An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense and, yet, believe beyond a reasonable doubt that he is guilty of the lesser offense.Hunt, 304 S.W.3d at 30 (citations omitted).
First-degree wanton endangerment is defined as follows: "A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 508.060(1).
Kentucky Revised Statute.
In the present case, two men robbed a gas station. The gas station's security camera recorded a video of the robbery. One of the men shown on the video was identified as Goodaker, and he does not deny that he was that person on the video. The robber identified as Goodaker is visible on the recording during the entire robbery. He can be seen holding a gun that appears to be a rifle at his side, which is pointed down toward the ground the entire time. The cashier at the gas station testified during trial that the robbers demanded the cashier give them cigarettes and the cash in the cash register. The cashier then gave the robbers two cartons of cigarettes and the $16 that was in the cash register. The cashier can be seen on the video recording giving the robbers the paper money from the cash register and some other items, but it is unclear from the video what those other items are (presumably, the cigarettes). After the men left, the cashier locked the door. The cashier testified that he then called the police.
The circuit court did not abuse its discretion when it chose not to instruct the jury on first-degree wanton endangerment. Goodaker did not point the gun at anyone and he did not fire it. His act of continuously pointing the gun at the floor simply did not amount to "wantonly engag[ing] in conduct which creates a substantial danger of death or serious physical injury to another person," as required to constitute first-degree wanton endangerment. Therefore, the circuit court had no duty to instruct the jury on first-degree wanton endangerment because the evidence did not support such an instruction.
B. FAILURE TO SEVER TRAFFICKING COUNT
Goodaker next contends that the circuit court erred in not severing the trafficking in marijuana count. In support of this claim, Goodaker alleges that he "was never under investigation for [t]rafficking in [m]arijuana. The marijuana was simply found in his apartment when the search warrant was executed. . . . There was never established any factual nexus between the [r]obbery charge and the [t]rafficking charge." In denying Goodaker's motion to sever, the circuit court reasoned that the court believed the jury could make a logical connection between the robbery and the trafficking in marijuana counts because the jury might find that Goodaker committed the robbery in order to get money to buy more marijuana for his trafficking activities.
"Whether charges should be tried separately or jointly lies within the sound discretion of the court and where they are of the same or similar character or were based on transactions connected together, a joint trial is proper." Pennington v. Commonwealth, 479 S.W.2d 618, 619-20 (Ky. 1972) (internal quotation marks, ellipses, and citation omitted). Pursuant to RCr 6.18,
Kentucky Rule of Criminal Procedure.
[t]wo (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
However, RCr 8.31 (formerly RCr 9.16) states:
If it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. A motion for such relief must be made before the jury is sworn or, if there is no jury, before any evidence is received. . . .
Kentucky's appellate courts
will not overturn a trial court's joinder determination absent a showing of actual prejudice and a clear abuse of discretion. [The appellate court] must be clearly convinced that prejudice occurred and that the likelihood of prejudice was so clearly demonstrated to the trial
judge that the refusal to grant a severance was an abuse of discretion.Murray v. Commonwealth, 399 S.W.3d 398, 405 (Ky. 2013) (footnotes omitted).
Regarding prejudice, Goodaker's motion to sever merely stated that "joinder of the offenses would result in a prejudicial effect which would affect his ability to have a fair trial." This is a conclusory statement. Further, during the hearing on the motion to sever, Goodaker did not clearly demonstrate to the trial court the likelihood of prejudice. Rather, he simply made the same arguments he makes on appeal. Consequently, Goodaker has not shown that the circuit court's denial of his motion to sever was an abuse of discretion, so this claim lacks merit.
C. FAILURE TO STRIKE JUROR
Finally, Goodaker alleges that the circuit court erred in failing to strike for cause the judge's neighbor when she appeared in the venire. During in-chambers voir dire of the individual jurors, the circuit court judge asked one female juror whether she had any neighbors who were involved in the case and who might affect her ability to be fair and impartial. The juror, seemingly realizing that the judge was joking with her (in a professional manner), hesitated very briefly while it seemed she either was trying to understand the judge's joke or she was attempting to develop a humorous quip in response. The juror acknowledged that the judge was her neighbor, and the judge laughed. Defense counsel did not ask any questions of the juror about this, though; instead, counsel immediately began asking the juror questions on another topic. A couple of minutes later, after the juror had left the room, defense counsel moved to strike the juror for cause because she had hesitated when responding to the judge's question. The circuit court judge found that the juror's hesitation was merely because the juror was "being silly," and the court denied the motion to strike.
The juror's hesitation was so brief, in fact, that there was almost no hesitation at all.
"The trial court has the opportunity to observe the demeanor of a prospective juror, and therefore is in the best position to interpret the substance and nature of that person's responses to voir dire questioning." Wood v. Commonwealth, 178 S.W.3d 500, 515-16 (Ky. 2005). Consequently, we review a trial court's decision concerning whether to strike a juror for cause for an abuse of discretion. See Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007).
The court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor. There is no "magic question" that can rehabilitate a juror as impartiality is not a technical question but a state of mind. . . . When the question is analyzed as to whether the trial court judge abused his discretion, a reviewing court must determine if the trial court had a sound legal basis for his ruling. If a judge errs on a finding of fact, he must be clearly erroneous or there is no error; if error is premised on incorrect application of the law, a judge abuses his discretion when the legal error is so clear that there is no room for the judge to have ruled any differently. RCr 9.36 requires a judge to excuse a juror if there is a reasonable basis to believe the juror cannot be fair and impartial.Shane, 243 S.W.3d at 338.
Kentucky Rule of Criminal Procedure. --------
If the trial court abuses its discretion by failing to grant a motion to strike a juror for cause, the Kentucky Supreme Court
has ruled that ordinarily, such an error affects a substantial right of a defendant and is presumed to be prejudicial. However, such an error can be shown to be non-prejudicial if the other jurors the defendant would have used his peremptory strikes on do not actually sit on the jury.Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009) (citations omitted).
Upon reviewing the video recording of the voir dire at issue, it is apparent that the circuit court properly found that the prospective juror was just "being silly" when she hesitated in answering his question. Further, the fact that the juror was the judge's neighbor does not itself require her to be disqualified. The Kentucky Supreme Court has held that simply because a prospective juror is acquainted with the victim's family or is a neighbor of the victim's family does not require the disqualification of the juror. See Derossett v. Commonwealth, 867 S.W.2d 195, 197 (Ky. 1993). If knowing or being neighbors with the victim's family is insufficient for automatic juror disqualification, then simply being the neighbor of the trial judge is also insufficient. Consequently, the circuit court did not abuse its discretion when it denied Goodaker's motion to strike the juror for cause.
Accordingly, the judgment of the Christian Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky