Opinion
NO. 2013-CA-001018-MR
06-05-2015
TRACY SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Colin H. Lindsay James L. Adams Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD JR., JUDGE
ACTION NO. 12-CI-00088
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON AND JONES, JUDGES. JONES, JUDGE: This appeal arises out of a judgment of conviction entered by the Wayne Circuit Court wherein Appellant Tracy K. Shelton was convicted of burglary in the third degree and being a persistent felony offender in the first degree. For the reasons more fully explained below, we AFFIRM.
I. BACKGROUND
On March 19, 2012, Monticello Police Sergeant Tony Morris and Kentucky State Trooper Parrish Baker responded to a call that two men were in the old Ford garage, a vacant building located in Monticello, Kentucky. After arriving on the scene, the officers discovered Tracy Shelton and his brother, Chris Shelton, inside the building. Tracy was on a ladder with a tool in his hand; Chris was at the foot of the ladder. The officers noted that a black duffle bag was lying on the floor next to Chris. The officers placed both Tracy and Chris under arrest.
Oval Ramsey owned the building. It used to be a Ford dealership garage but had been vacant for years. Since that time, the building had fallen into disrepair and had been subjected to vandals and looters.
On May 29, 2012, a Wayne County Grand Jury indicted Tracy with burglary in the third degree. Because Tracy also had prior felony convictions, the grand jury also indicted him with the offense of being a persistent felony offender in the first degree. On January 30, 2013, Tracy was tried before a Wayne County jury. The Commonwealth's theory at trial was that Tracy and his brother entered the Ford garage with the intent to steal copper wire from it.
The jury found Tracy guilty both on the burglary charge and the persistent felony offender charge. The trial court sentenced Tracy to sixteen years in prison by judgment entered June 4, 2013. This appeal followed.
Tracy raises three alleged errors on appeal: (1) he was improperly denied an instruction on the lesser-included offense of criminal trespass in the second degree; (2) he was denied his due process right to a fair trial because the jury heard repeated references during the guilt phase to his other charges and offenses, including his five prior felony convictions; and (3) the sentencing phase of his trial failed to conform to the requirements of Mullikan v. Commonwealth, 341 S.W.3d 99 (Ky. 2011) and KRS 532.055(2)(a).
The last two errors were not preserved at trial; therefore, they are subject to palpable error review.
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II. ANALYSIS
A. Lesser-Included Offense
Tracy requested an instruction on criminal trespass in the second degree. The trial court denied his request. On appeal, Tracy maintains that the trial court erred when it refused to include the criminal trespass in the second degree instruction because it was entirely plausible considering the totality of the evidence that the jury might have had a reasonable doubt as to Tracy's guilt on the charge of burglary in the third degree, and yet believed beyond a reasonable doubt that he was guilty of criminal trespass in the second degree. We disagree.
"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." KRS 511.040(1) (emphasis added). Criminal trespass in the second degree, KRS 511.070(1), is the same as burglary in the third degree with the exception that it does not require the "intent to commit a crime" mens rea. See Commonwealth v. Sanders, 685 S.W.2d 557, 558 (Ky. 1985). "The offense of criminal trespass is a lesser crime which is included in the crime of burglary." Martin v. Commonwealth, 571 S.W.2d 613, 614 (Ky. 1978).
A defendant has a right to have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions. Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006). This includes instructions on lesser included offenses. "Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge." Id. at 20. Thus, "[a] court is required to instruct a jury on all offenses that are supported by the evidence." Clark v. Commonwealth, 223 S.W.3d 90, 93 (Ky. 2007). However, "[a]n instruction on a lesser included offense is appropriate if, and only if, on the given evidence a reasonable juror could entertain a reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser charge." Osborne v. Commonwealth, 43 S.W.3d 234, 244 (Ky. 2001); see also Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky. 1987).
We review the refusal to give a jury instruction of a lesser-included offense by the 'reasonable juror' standard. See Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011). "Considering the evidence favorably to the proponent of the instruction, we ask . . . whether a reasonable juror could acquit of the greater charge but convict of the lesser." Id.
Tracy argues that a reasonable juror could have concluded from the evidence that he was inside in Ford garage with the intent to do something other than "commit a crime." To support his argument, Tracy points to the fact that the Commonwealth failed to introduce: (1) any items recovered at the scene of the incident; (2) the duffle bag alleged to have been found at the scene; (3) the tool Tracy was allegedly holding; (4) the ladder Tracy was allegedly standing on; (5) the metal alleged to be in the duffle bag; or (6) any wiring allegedly removed from the garage. Furthermore, Tracy asserts that the Commonwealth failed to establish at trial how the door to the Ford garage came to be open. Given these omissions in the Commonwealth's evidence, Tracy argues that a reasonable juror, weighing the testimony and lack of any physical evidence, could have concluded that the Commonwealth did not meet its burden of proof on the element of intent to commit a crime inside the building.
During trial, Detective Baker testified that Tracy admitted to him that he and his brother entered the Ford garage with the intent to steal copper from it. No evidence at trial pointed to any other reason for Tracy having been inside the Ford garage that day with wire cutters and a ladder.
A court is required to instruct a jury on all offenses that are supported by the evidence, this does not mean, however, that speculative theories are to be put before the jury because the testimony includes some basis for the speculation. Brown v. Commonwealth, 313 S.W.3d 577, 626-27 (Ky. 2010). We do not believe that a reasonable juror could have entertained a reasonable doubt of Tracy's guilt on the burglary charge, but believe beyond a reasonable doubt that he was guilty of trespass. Accordingly, we do not believe that the trial court erred when it refused to instruct on the lesser-included offense of trespass in the second degree.
B. Mention of Prior Offenses and Convictions
Tracy asserts that his Due Process right to a fair trial was violated during the course of his trial because both the prosecution and his defense lawyer mentioned his prior convictions and charges on several different occasions: (1) the Commonwealth's witness list, which was read to the jury pool during voir dire, included "a representative of Probation and Parole"; (2) Detective Baker's testimony was rife with references to other offenses and charges; and (3) during closing argument, defense counsel told the jury that Tracy had prior felony convictions. Tracy argues that in permitting the jury to hear this "drumbeat of other-offense references" and "bad character evidence without correction" the trial court violated his due process right to a fair trial.
Tracy failed to object to the introduction of these issues or to request an admonition. Accordingly, our standard of review is one of palpable error pursuant to Kentucky Rule of Criminal Procedure 10.26. When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006). Furthermore, "[a] party claiming palpable error must show a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Chavies v. Commonwealth, 374 S.W.3d 313, 322-23 (Ky. 2012).
Tracy argues that the tainting of the jury in this case began when the prosecutor told the full venire, in response to a question from the trial court, that the Commonwealth may present the testimony of "a representative of Probation and Parole." He argues that this statement was then amplified later in voir dire, when a prospective juror acknowledged being related to a probation and parole officer and a second discussion about probation and parole ensued. As such, Tracy argues that this planted the idea in jurors' minds that Tracy might have been on either probation or parole at the time of his arrest.
The Commonwealth asserts that Tracy cannot show plain error with regard to prosecutor's statement about a probation witness because he "cites no Kentucky cases which hold that the Commonwealth cannot include a member of probation and parole on its witness list." The Commonwealth explains that Tracy must do this because "an error is palpable... only if it is clear or plain under current law." Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).
Although there are no cases directly on point, courts have found that references to prior contacts with probation officers or law enforcement can be prejudicial. This is consistent with Dennis v. Commonwealth, 526 S.W.2d 8, 10 (Ky. 1975), holding that a statement to a jury that a defendant was "on probation" constituted "prejudicial error." The issue here is whether the error rises to the level of palpable error.
Here, keeping in mind that our standard of review is palpable error, we do not believe that the mere mention of the fact that Commonwealth might call a probation officer to testify was manifest error. The jury was not told that Tracy was on probation or parole. While the jury could have believed this was the case, they may just as easily have believed that a representative from probation and parole was going to offer testimony during the penalty phase regarding some aspect of sentencing. Likewise, we do not believe that any error in this regard would have changed the outcome of this case given Tracy's admission to Detective Baker.
Tracy's next argument concerns Detective Baker's references to other charges and warrants. During direct examination in response to the prosecutor's question, "Who took them to the jail?" Detective Baker answered as follows:
They were transported to the jail, I believe by maybe Officer Morris or Officer Stephens, I can't remember. But after I did an interview with them, there was also the opportunity for them to speak with one of the (unintelligible) detectives. Not regarding this particular case. I wasn't present for that interview. It didn't take very long. And then they were transported to the jail. They [Tracy and his brother] had some other warrants that needed to be processed, so they were cited for this offense along with some others and then transported to the jail. VR: 1/30/13; 11:49:34 a.m.
No objection was made during trial to Baker's testimony. Then, during cross-examination, Tracy's counsel mentioned the lapse of time between the recorded time of apprehension and the recorded time of arrest to which Baker replied:
Yes, we're talking about an interview with each individual and then the citations are - since it had to be two difference sets of citations, because they had some bench warrants, so those citations would be completed
separately and then this charge. And it takes a while to do all the paperwork. And I kept them there 'til I was ready to send them with everything. VR: 1/30/13; 11:51:10 a.m.
Defense counsel then asked permission to approach the bench and an exchange took place between the prosecutor, defense counsel and the trial court about the mentioning of the bench warrants. Although the prosecutor suggested an admonition, the defense counsel did not make a motion for an admonition or limiting instruction and the trial court did not admonish the jury sua sponte.
The Supreme Court of Kentucky has made it clear that error, palpable or otherwise, may be waived at trial and not reviewed on appeal. Tackett v. Commonwealth, 445 S.W.3d 20, 28 (Ky. 2014). Errors that are invited by questioning or affirmatively acquiesced to are waived.
In Shemwell v. Commonwealth, 294 S.W.3d 430, 436 (Ky. 2009), our Supreme Court faced a similar scenario. Shemwell argued that he was substantially prejudiced and denied due process because a detective testified that the police suspected Shemwell of selling drugs for many years. On cross-examination, Shemwell's counsel repeatedly asked the detective questions which required the detective to reiterate the police's longstanding suspicions about Shemwell's drug-related activities. The court held that "[b]y repeatedly asking Detective Clark questions which mentioned or involved the police's suspicions about Appellant manufacturing drugs, Appellant waived any potential claim of error arising from the testimony."
In this case, during Detective Baker's questioning, defense counsel had the opportunity to obtain an admonishment, without objection, to the mention of other charges and warrants; yet, he failed to do so. Moreover, defense counsel already knew that the delay in transporting Tracy to the jail was caused by the outstanding warrants against Tracy. Yet, on cross-examination, defense counsel asked Detective Baker to explain the delay. His answer required him to bring up the other charges and warrants once again. Under these circumstances, we conclude that Tracy waived any argument concerning Detective Bakers' testimony concerning the other charges and warrants.
Lastly, Tracy argues that Defense counsel's closing statement further eroded his right to due process of law. During his closing argument, defense counsel told the jury that Tracy had "five prior felonies." His argument included the following statement:
Now, I'm gonna kinda go over some stuff you heard. Let's think about what happened that day. First, I want - let's think about the characters we're hearing about, specifically Tracy. At the beginning of this morning, we had a big room full of people. You were all kinda scattered out everywhere and we talked about potential witnesses. There was a potential witness that we'd heard about but didn't hear from. But I do want to discuss that. A representative from Probation and Parole. I'll go ahead and tell you. My client has prior felonies. He has several prior felonies. He had, I believe five prior felonies. We're talking about a burglary, but this case here, we're talking about a burglary.
There was no motion for admonishment, only a suggestion from the prosecutor. Tracy believes that a sua sponte finding of mistrial or a sua sponte limiting instruction were the only avenues that could have avoided manifest injustice. As such, Tracy argues that the trial court's failure to do either constitutes error.
We recognize defense counsel may have had good intentions in mentioning the record of his client as evidenced by the fact that defense counsel argued to the court that the Commonwealth's remarks, if left unaddressed, would work "to prejudice my client" and that "I should at least be able to address it." However, we agree with the Commonwealth that under the doctrine of invited error, Tracy cannot complain on appeal of errors committed by defense counsel as part of his closing argument.
Lastly, Tracy asserts the cumulative effect of the mentioning other charges and convictions throughout the his trial resulted in a fundamentally unfair proceeding. See Funk v. Commonwealth, 842 S.W.2d 476, 483 (Ky.1992) (noting that "the cumulative effect of the prejudice" of multiple errors can require reversal).
"We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). If the errors have not "individually raised any real question of prejudice," then cumulative error is not implicated. Id.
Recognizing the very narrow scope of our review, we cannot conclude that the mentioning of other charges and warrants resulted in manifest injustice in this particular case. Were this a close evidentiary case, we might be able to conclude that this evidence improperly prejudiced the jury into considering Tracy's felonious past as evidence of his propensity to commit the crime in question. However, this was not a close case. The evidence against Tracy was compelling. He was found in the garage with wire cutters and a ladder. He admitted during police questioning that he went into the garage with the intent to steal copper wire. Under these facts, we do not believe that the references to prior charges and warrants resulted in manifest injustice. See Ernst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005).
C. Mullikan
Finally, Tracy asserts that we should reverse because the sentencing phase of his trial failed to conform to the requirements of Mullikan, 341 S.W.3d 99 and KRS 532.055(2)(a). Because this alleged error is unpreserved, we also review it under the palpable error standard.
In Mullikan, the Kentucky Supreme Court reviewed its past difficulties in providing a workable rule for courts to follow in determining what evidence of prior crimes could be admitted at the sentencing phase. The Court then established a bright-line rule by holding that "the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed." Id. at 109. It also offered suggestions for how this might be accomplished. Id.
Here, the jury was supplied with copies of four prior judgments of conviction against Tracy. Tracy asserts that this is improper under Mullikan because the judgments contained information that conveyed to the jury more about the prior offenses than simply "the elements of the crimes previously committed." Mullikan, 341 S.W.3d at 109.
Again, we conclude that counsel waived his issue. Counsel did not simply fail to object to introduction of the exhibits; he affirmatively acquiesced to their introduction after noting that some of the judgments contained charged offenses for which Tracy was not ultimately convicted. Counsel requested only that he be allowed to explain the judgments to the jury. With that, counsel stated that he had no objections to the prior judgments. During closing he referred to them and requested the jury to look at them as they deliberated.
Because we are in agreement with the Commonwealth that the alleged error was one in which Tracy's counsel voluntarily participated and did not object to, we decline to grant palpable error review with respect to any material contained in the judgments.
Next, Tracy argues the trial court erred with respect to his prior judgments and convictions by misstating his record. The instruction to the jury on the offense of First Degree persistent felony offender stated that prior to March 19, 2012, the Defendant was convicted of Trafficking in a Controlled Substance, 1st Degree. However Tracy's previous conviction was for the offense of Trafficking in a Controlled Substance, 2nd Degree. While we do find that the trial court erred in supplying the jury with an instruction listing the incorrect degree of the prior conviction, we do not believe that it rises to the level of manifest injustice in this case as either offense would have rendered Tracy eligible for PFO status. Additionally, the judgment listing the correct degree was introduced into evidence.
Tracy also complains that no one described to the jury the elements of any of the five prior felonies by "a reading" from an instruction form or statute. Mullikan, 341 S.W.3d at 109. Our Supreme Court rejected a substantially similar argument in Webb v. Commonwealth, 387 S.W.3d 319, 330-31 (Ky. 2012). The prosecutor summarized the elements as part of his colloquially. Given that the judgments were in evidence, we do not find this to be palpable error.
While couched as a Mullikan claim, Tracy also argues that certain comments the prosecutor made during his closing were improper. For example, Tracy complains that the prosecutor labeled his prior forgery conviction as being a conviction for writing "cold checks" and his narcotics conviction as being one for "selling pills." The statements by the prosecutor certainly do not rise to the level required to justify palpable error.
Finally, Tracy argues the trial court committed palpable error when it failed to follow the the proper procedure specified in Commonwealth v. Reneer, 734 S.W.2d 794, 798 (Ky. 1987), for imposing a PFO sentence in which the jury is instructed to "(1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender."
As no sentence was fixed for Tracy's underlying conviction before the jury considered whether to convict him of being a PFO in the first degree, Tracy correctly asserts that the trial court failed to adhere to the Reneer standard. However, our Supreme Court has consistently held that a trial court's failure to follow the Reneer format in the penalty phase does not constitute palpable error. Owens v. Commonwealth, 329 S.W.3d 307, 319-320 (Ky.2011) ("While we continue to cite Reneer as the required practice for trial courts to follow for PFO sentencing, we have not yet held that the failure to do so is palpable error."); see also Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009); Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991). There is no palpable error here, and Tracy is not entitled to a new penalty phase.
III. CONCLUSION
For the foregoing reasons we affirm the Wayne Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Colin H. Lindsay
James L. Adams
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky