Opinion
NO. 2012-CA-000818-MR
02-07-2014
CURTIS HALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Thomas M. Ransdell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 11-CR-00100
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: The appellant, Curtis Hall, appeals a Judgment entered by the Bell Circuit Court finding him guilty of burglary in the third degree, fleeing or evading police in the second degree, and for being a persistent felony offender in the second degree. Hall asserts his conviction must be reversed as a result of the court's refusal to allow impeachment testimony from the grand jury proceedings, and its failure to enter a directed verdict of acquittal on the charge of burglary in the third degree. We disagree and affirm the decision of the circuit court.
On July 29, 2010, Officer Justin Barton of the Middlesboro Police Department received notification of a potential burglary at Bill's Truck Parts in Bell County. Officer Barton responded and went in pursuit of a black pickup truck witnessed at the scene. Joe Settles, an employee of Bill's Truck Parts, indicated that someone had cut the store's locks and had piled truck parts by the exit. Settles testified that he stopped by the store in the evening of July 29, 2010, around 11:00 or 11:30. When he approached the store, he observed a small black Mazda pickup truck with its interior lights on parked next to the door. Settles backed away slowly and called the police. While Settles was doing so, the truck pulled away. Settles began to follow the pickup but abandoned pursuit when he saw a patrol car enter the area where the truck fled. Settles then returned to Bill's Truck Parts to discover the padlocks on the walk-in door cut and the roll-up door, which locked from the inside, open. Settles also found stacks of parts next to the open doors. At trial, Settles identified Hall as the driver and explained he had had a clear view of Hall at the scene.
Officer Barton testified that, while driving to Bill's Truck Parts, he passed a small black pickup truck which accelerated upon seeing the patrol car. Officer Barton turned on his lights and began pursuit. Officer Barton could see the driver clearly. At trial, Officer Barton indicated he was certain Hall drove the truck. Although he briefly lost sight of the vehicle, Officer Barton soon discovered a small black Mazda pickup truck parked at Mike Smith's Truck Garage. There was no driver in the truck, but the engine was warm and the keys remained in the vehicle.
Officer Barton ordered a canine unit, but no one was apprehended during the search. The license plate number revealed the truck was registered to John Hall of Manchester, Kentucky. However, a checkbook with the name Curtis Hall was discovered in the cab. Further investigation revealed John Hall was Curtis Hall's father and they lived at the same address. Curtis Hall was arrested several months later.
The jury convicted Hall and sentenced him to a total of ten years' imprisonment. Judgment was entered on April 16, 2012, and this appeal followed. On appeal, Hall asserts that the circuit court erred by failing to allow the defense to impeach Officer Barton with his grand jury testimony and failed to enter a directed verdict of acquittal on the burglary charge. For the reasons set forth below, we disagree.
First, we turn to the impeachment issues. Hall asserts the circuit court erred in declining to let him impeach Officer Barton with his written notes from the grand jury proceedings. Hall's counsel wished to impeach Officer Barton regarding photographs he had allegedly taken to Settles for the purpose of identifying the suspect. Hall also claims he was not permitted to present impeachment testimony regarding the rate of speed the black pickup was traveling while he was in pursuit. The parties dispute whether the impeachment issues were properly preserved. Thus, we must examine the trial proceedings.
At trial, both Officer Barton and Settles identified Hall as the driver of the small black pick-up. Their identification was based on seeing him the evening of the burglary. While cross-examining Officer Barton, Hall's counsel inquired whether Officer Barton had searched "jail tracker" for a photo of Hall and in doing so discovered two individuals with the same name. Hall's counsel then sought to establish that Officer Barton had taken only one photograph with him when he interviewed Settles. Barton indicated he did not remember taking any photographs to the interview. Hall's attorney responded that both Officer Barton's report and his grand jury testimony indicated that he had taken a photo for Settles to indentify. The prosecutor objected to the statement, and counsel for both parties approached the bench.
During the bench conference, it became apparent to the circuit judge that Hall's attorney was relying on his written notes from the grand jury proceedings to cross-examine the witness. A video of the grand jury proceedings had been made available to Hall's counsel prior to trial, but he did not use a transcript. The judge instructed that Hall's counsel could impeach Officer Barton only with the grand jury transcript. Hall's counsel responded, "Not a problem." Despite the court's sustaining the objection, none of the testimony was stricken from the record. Hall's counsel presented no arguments to refute the court's decision and did not move for a mistrial. Hall's counsel also presented no objection to Officer Blanton's rate of speed testimony, procured via the prosecution's examination.
It is well settled that "errors not brought to the attention of the trial judge, and not preserved by exceptions to his rulings are not available on appeal." Ramsey v. Commonwealth, 267 S.W.2d 730, 732 (Ky. App. 1954). As a result, Hall's counsel waived his ability to challenge the court's decision regarding impeachment because he presented no arguments in opposition. Likewise, his failure to object to the rate of speed testimony left the argument unpreserved. Thus, both arguments are only entitled to palpable error review. See RCr 10.26.
An error is palpable if it results in manifest injustice. RCr 10.29. That is not the case here. Even under the more lenient abuse of discretion standard, afforded to properly preserved arguments, an evidentiary error that does not substantially sway the verdict is harmless error and does not warrant reversal. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009).
Officer Barton and Joe Settles made in-court identifications of Hall based on their personal knowledge. Also, Hall's counsel had the opportunity to question Joe Settles regarding whether Officer Blanton had brought him a photograph, but he declined to do so. When questioning Officer Barton about Hall's rate of speed and the photograph, defense counsel failed to present Officer Blanton's police report, which contained the same facts he wished highlighted from the grand jury testimony. Further, Hall's counsel did call into question the reliability of Officer Barton's identification. The failure of Hall's counsel to take advantage of other means of impeachment does not warrant reversal and, even if there was an error, it was not harmful, much less palpable.
Next, we turn to Hall's argument regarding the denial of his motion for a directed verdict on the burglary charge. Hall asserts the Commonwealth failed to prove he entered the truck parts store, an essential element of the burglary conviction. "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[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (internal citations omitted).
"A person is guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building." KRS511.040(1). Even absent the discovery of stolen property, a defendant may be convicted of burglary. See Mathis v. Commonwealth, 447 S.W.2d 641, 643 (Ky. 1969) (affirming a burglary conviction despite the fact that there was no evidence that the suspects possessed stolen property). Likewise, a conviction may be based on circumstantial evidence. Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000) ("Conviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt.").
Hall was seen fleeing the scene, and he evaded police. The inference that Hall entered the store is further supported by the fact that the locks were cut and items in the store were moved around and placed by the door, indicating that someone not only broke in, but actually entered the store. The evidence linking Hall to the scene of the crime, and the eye-witness identifications made as he fled the scene, were sufficient for a reasonable to juror to conclude that he removed the locks and entered the truck part store.
For the reasons set forth above, the judgment of the circuit court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas M. Ransdell
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky