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MARK JOSEPH MORTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
OPINIONAFFIRMING IN PART AND REVERSING IN PART
Appellant, Mark Joseph Morton, was convicted in the Letcher Circuit Court of first-degree robbery and retaliating against a participant in a legal proceeding. He was sentenced to a total of twelve-years' imprisonment and appeals to this Court as a matter of right.
The charges stemmed from a December 16, 2010, robbery of a Super 8 hotel in Whitesburg, Kentucky. On the evening in question, the hotel's front desk clerk, Malachi Longworth, was working alone when a man wearing a full-face toboggan, blue jeans, a green jacket and boots entered the hotel lobby. The man asked to use the restroom and, when Longworth consented, walked into an unmarked employee-only area to use the private restroom. When the man returned, he began questioning Longworth about who else was working at the time and whether a manager would return. During the entire conversation, the man never removed the toboggan. At some point, however, Longworth gave the man a soda and noted that when he raised the toboggan to take a drink, he had a bushy goatee.
Longworth eventually became suspicious after the man ventured behind the front desk a couple of times. The third time he walked behind the desk, he produced a kitchen knife and held it to Longworth's throat. The man then forced Longworth to the hotel cash register and demanded money. Not satisfied with what was in the register, the man told Longworth that he knew where hotel staff kept the money in the office and directed Longworth to that area while still holding the knife at his back. After taking the money from the office, the man told Longworth that he would return to the hotel if Longworth called the police. He then ordered Longworth to go into the back laundry room, which Longworth refused to do. As the man was putting away the knife, Longworth was able to run up the hotel stairs. The man thereafter fled the premises.
Responding to a 911 call, police arrived at the hotel around 10:55 pm. Longworth was able to give a detailed description of what the robber was wearing as well as the fact that he had a goatee. The hotel manager estimated that approximately $550 dollars had been taken, mostly $1 and $5 bills wrapped in rubber bands, as well as some coin rolls. Because the suspect was believed to have left on foot, police began searching the surrounding area. An employee at a nearby convenience store reported that Appellant had been in the store around 10:15–10:30 and was wearing the same clothing described by Longworth. A store customer also gave a detailed description of Appellant. Photographs taken from the store's surveillance camera confirmed that it was Appellant.
Later the same evening, police stopped a vehicle that was pulling out of Appellant's driveway. Officers observed that Appellant, who was seated alone in the back of the vehicle, was trying to conceal a large number of $1 and $5 bills, as well as rubber bands, between the vehicle's seat cushions. In addition, although no longer wearing the toboggan and green jacket, Appellant was wearing the same colored shirt as described by Longworth. Police subsequently returned to the hotel where Longworth positively identified the individual in the surveillance photos as the person who had robbed the hotel. Further, without the toboggan, Longworth recognized Appellant as the son of a woman who had also worked at the hotel as a manager and desk clerk, thus accounting for his apparent knowledge of the hotel layout and where money was kept.
On February 3, 2011, Appellant was indicted by a Letcher County grand jury for first-degree robbery, theft by unlawful taking over $500,Double and retaliating against a participant in a legal process. Following a trial in August 2011, the jury found Appellant guilty of first-degree robbery and retaliating against a participant in the legal process. Appellant was sentenced to a total of ten years' imprisonment and appeals to this Court as a matter of right.
Appellant first argues that he was entitled to a mistrial after two police officers gave testimony as to the ultimate issue in the case. The first to testify was Officer Phillip Slone. When shown the surveillance photos of Appellant taken from the convenience store, Officer Slone testified that Appellant's clothing matched the description of the robber's clothing given by Longworth. The prosecutor then asked the follow-up question “how so?” Defense counsel objected and, during the ensuing bench conference, argued that whether Appellant matched the description given by Longworth was a question for the jury. Although the trial court overruled the objection, the prosecutor did not again ask Officer Slone to explain how the photos and description matched.
The next officer to testify was Chief Tyrone Fields. After providing details as to his investigation of the robbery, Chief Fields testified, that based upon the investigation, he concluded that Appellant had robbed the hotel. Chief Fields explained that the clothing Appellant was wearing in the surveillance video was consistent with Longworth's description of the robber, and further, that he believed Appellant had ample time between the robbery and when he was stopped by police to change his clothing. Defense counsel objected on the grounds that such consisted “ultimate issue” testimony, i.e. that Appellant robbed the hotel, and moved for a mistrial. The trial court denied the mistrial request but did admonish the jury as follows:
Ladies and gentlemen, the latter part of the witness's testimony went to, he testified that he concluded that the defendant was guilty of the robbery of the Super 8. That is an ultimate issue for the jury, not appropriate for any of the witnesses to testify. They can only testify about the facts they observed, not their conclusions of that nature. Therefore, I instruct you to disregard that testimony and not consider it in any way.
Appellant is correct that, in general, a witness's opinion that a defendant is guilty is not admissible at trial. Nugent v. Commonwealth, 639 S.W.2d 761 (Ky.1982); Bussey v. Commonwealth, 797 S.W.2d 483 (Ky.1990). “The issue of guilt or innocence is one for the jury to determine, and an opinion of a witness which intrudes on this function is not admissible․” Nugent, 639 S.W.2d at 764. However, with respect to Officer Slone, we fail to perceive any error. Appellant's objection was to the prosecutor's question as to how the surveillance photos and Longworth's description matched. Yet after the objection was overruled, the prosecutor did not return to that line of questioning. Further, Longworth had already testified and confirmed that Appellant was wearing the same clothing as the robber. Thus, as Officer Slone's testimony was cumulative, error, if any, was harmless. RCr 9.24; see Brewer v. Commonwealth, 206 S.W.3d 343, 352 (Ky.2006).
We similarly cannot conclude that Chief Fields' testimony warranted a mistrial. A review of the video indicates that the testimony Appellant complains of was in response to three questions from the prosecutor. However, it was not until after Chief Fields' third response and the Commonwealth's announcement that it was passing the witness, that defense counsel finally objected. The trial court criticized defense counsel for waiting to object but nonetheless admonished the jury to disregard Chief Fields' comments.
A jury is presumed to follow an admonition to disregard evidence and it is deemed to cure any error flowing from the objectionable testimony. Johnson v. Commonwealth, 105 S.W.3d 430 (Ky.2003). Furthermore,
[t]here are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.” (Emphasis in original)
Id. at 441 (Citations omitted).
Neither exception applies herein. Clearly, the question had a factual basis. Moreover, we do not believe that there was an overwhelming probability that the jury would be unable to follow the trial court's simple and straightforward admonition. Finally, given the overwhelming evidence of guilt, Chief Fields' testimony was simply not “devastating” to Appellant's case and certainly did not create a manifest necessity for a mistrial. Again, we conclude that error, if any, was harmless. RCr 9.24.
Appellant next argues that the trial court erred in denying his motions for a directed verdict as there was insufficient evidence to convict him of either charge. As previously noted, there was more than sufficient evidence from which a jury could reasonably conclude that Appellant was, in fact, the individual who robbed the Super 8. However, after reviewing the testimony, we do believe that Appellant was entitled to a directed verdict on the charge of retaliating against a participant in a legal proceeding.
The standard for determining whether a directed verdict should be granted is well-settled:
On motion for a directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991); Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983). On appellate review, the test of a directed verdict is, 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. Benham, 816 S.W.2d at 187 (Ky.1991) (citations omitted). “This standard applies whether the evidence is direct or circumstantial.” Brewer v. Commonwealth, 206 S.W.3d 313, 318 (Ky.2006).
KRS 524.055 provides:
(1) A person is guilty of retaliating against a participant in the legal process when he or she engages or threatens to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process or a person he or she believes may be called as a participant in the legal process in any official proceeding or because the person has participated in a legal proceeding:
(a) Attending an official proceeding, or giving or producing any testimony, record, document, or other object produced at that proceeding;
(b) Giving information to a law enforcement officer relating to the possible commission of an offense or a violation of conditions of probation,
parole, or release pending judicial proceedings;
(c) Vote, decision, or opinion; or
(d) Performance of his or her duty.
(2) Retaliating against a participant in the legal process is a Class D felony.
(3) In order for a person to be convicted of a violation of this section, the act against a participant in the legal process or the immediate family of a participant in the legal process shall be related to the performance of a duty or role played by the participant in the legal process.
58 Am.Jur.2d Obstructing Justice § 47 (2013) explains the nature and applicability of such offense:
Certain statutes prohibit retaliation against a witness or victim. Such statutes are designed to protect witnesses from being mistreated because of their involvement in courtroom proceedings. More generally, a central purpose of a retaliation statute is to encourage citizens to perform vital public duties without fear of retribution; such duties may include reporting criminal activities, testifying in official proceedings, or cooperating with the government in a criminal investigation.
A statute prohibiting retaliation against a witness or victim has three essential elements:
there must be a communicated intent to commit harm or injury to another's person, property, or rights by the commission of unlawful acts
the threat must be directed toward a person protected by the statute
the threat must be made for retributive or retaliatory purposes based on the victim's membership in one of the protected classes. (Footnotes omitted).
Admittedly, we are somewhat perplexed by the use of said charge in the context of what occurred. The Commonwealth has not cited to case law, and we find none, from any jurisdiction, much less Kentucky, that supports such a cause of action under the circumstances presented herein. Furthermore, the only evidence presented by the Commonwealth on this charge was the testimony of Longworth, who stated that after Appellant had taken the money from the back room safe, he told Longworth not to call the police or he would return. Thereafter, he ordered Longworth to go wait in the laundry room. Longworth testified that he refused to do so and, as Appellant was putting the knife away, Longworth ran up the hotel stairs. At that point, Appellant left the premises. At no time did Longworth testify that Appellant threatened to physically harm him if he called the police, nor did Longworth express any fear of such occurring.
We are of the opinion that Appellant's innocuous comment that he would return, without any more specificity, was simply part the robbery. In any event, there is nothing in Longworth's testimony to support a finding that Appellant “engage [d] or threaten[ed] to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process or a person he or she believes may be called as a participant in the legal process.” As such, we conclude that under the evidence as a whole, it would be clearly unreasonable for the jury to find Appellant guilty. Benham, 816 S.W.2d at 187. Accordingly, he was entitled to a directed verdict on the charge of retaliating against a participant in a legal proceeding.
For the reasons stated herein, Appellant's conviction and sentence for first-degree robbery are affirmed. However, the conviction and sentence for retaliating against a participant in a legal process are reversed. This matter is remanded to the Letcher Circuit Court for entry of an order in accordance with this opinion.
Response sent, thank you
Docket No: NO. 2011–CA–002062–MR
Decided: June 14, 2013
Court: Court of Appeals of Kentucky.
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