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Scott YOUNG, Appellant v. COMMONWEALTH of Kentucky, Appellee
Scott Young appeals from the judgment of the Jefferson Circuit Court convicting him of second-degree assault and being a persistent felony offender (PFO). His ten-year sentence for the assault conviction was enhanced by the PFO conviction, and he was sentenced to prison for a total of eighteen years. Young asserts the circuit court made a total of four errors. We affirm.
Young's first conviction for the underlying assault (for which he was sentenced to twenty years’ imprisonment) was reversed on direct appeal to the Kentucky Supreme Court. Because the facts remain the same, we repeat the summation from the first appeal:
Pamela Walker testified that she and Appellant were just friends, but Appellant wanted a closer relationship and Walker rebuffed his efforts in that regard. While at home one day, she saw Appellant walking down the street toward her residence. She anticipated his arrival at her door, but when the doorbell did not ring, she opened the door to look outside. At that point, according to Walker's testimony, Appellant forced his way into her residence, struck her with a bat that she kept by the door, and held a box cutter knife to her throat.
Walker lost consciousness and upon awakening, with Appellant still present, she assessed her injuries and walked to a nearby hospital emergency room. Appellant went with her. While being treated, Walker handed a nurse a note reading “he did it.” Hospital personnel contacted the police. Appellant was subsequently arrested and indicted for the offenses of first degree assault, menacing, and being a first degree persistent felony offender. The menacing charge was dismissed prior to trial.
Young v. Commonwealth, No. 2014-SC-000541-MR, 2016 WL 7665436, at *1 (Ky. Dec. 15, 2016). The Supreme Court held that Young had been deprived of his right to hybrid counsel, and the matter was remanded for a new trial in the Jefferson Circuit Court. Replacement counsel was appointed, and retrial was held over four days in March 2018. Young was again convicted and sentenced as stated above. Additional facts will be included within the discussion of specific arguments on appeal.
We begin with Young's assertion that the circuit court committed reversible error by denying defense counsel's motion for a continuance. In support of this motion, trial counsel stated that she was not prepared to go forward because of the circuit court's last-minute ruling which allowed the Commonwealth to use videotaped testimony of the late complaining witness.1 Young also complains that the baseball bat allegedly used to commit the assault was no longer available, having been destroyed at some point after the first trial. Young states that he learned of the bat's destruction “minutes before trial began.” The circuit court's evidentiary rulings, Young asserts, left counsel unprepared to go to trial. He cites Kentucky Rule of Criminal Procedure (RCr) 7.24(2) and (11) in support of his argument that a continuance should have been granted under these circumstances.
A decision to grant or deny a continuance “is within the sound discretion of the trial court based upon the unique facts and circumstances of the case.” Eldred v. Commonwealth, 906 S.W.2d 694, 699 (Ky. 1994), overruled on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) (citation omitted). Upon appellate review, the trial court's ruling stands unless the court abused its discretion. Lovett v. Commonwealth, 858 S.W.2d 205, 208 (Ky. App. 1993). A court abuses its discretion if its decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).
The Kentucky Supreme Court has identified certain factors which the court should consider in ruling on a motion for a continuance. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). Those factors are “length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.” Id. (citation omitted).
Madden v. Commonwealth, 582 S.W.3d 54, 66 (Ky. App. 2019). Young fails to convince this Court that denial of his motion to continue was an abuse of discretion. Defense counsel was aware of Walker's unavailability well in advance of the second trial of Young's case. Albeit the circuit court delayed ruling on Young's motion to prohibit the videotape of Walker's testimony, a hearing had been held, and both parties submitted briefs on the issue nearly a month prior to the second trial's commencement. We have considered the Snodgrass factors and conclude that the delayed ruling regarding Walker's recorded testimony did not affect the outcome of the trial. Id. at 67; see also RCr 9.04 (“[T]he granting of a continuance is in the sound discretion of the trial judge.”).
Nor did Young demonstrate that the missing bat was prejudicial to him. In fact, Young had moved pretrial to suppress use of the bat as evidence. In the hearing on this issue, the circuit court questioned counsel on how to reconcile the request to exclude the bat as evidence with the later argument that the bat was potentially exculpatory evidence. The bat's destruction, the circuit court stated, “essentially granted” defense counsel's earlier motion to suppress. Again, we find no abuse in the circuit court's denial of the motion to continue. Id.
Young secondly maintains that a juror should have been struck for cause when she failed to disclose her prior domestic violence history. Young's motion to strike was denied by the circuit court, and he claims he was forced to exercise a peremptory challenge that he insists would and could have been used on one of four questionable jurors, three of whom remained on the jury panel.
Despite the juror's knowing failure to disclose her history of domestic violence, Young did not avail himself of the opportunity to question her individually during voir dire. He did not document the record with the information he averred was found online about the juror, and the strike sheets were not made part of the record (the latter through no apparent fault of Young 2 ). However, as he states, the juror in question knowingly failed to disclose this information about herself on three occasions, namely, on her juror questionnaire, and twice during voir dire when she remained silent after the Commonwealth and defense counsel asked whether any juror had any history with domestic violence.
The Court reviews the trial court's decision not to strike [a juror] for cause, under an abuse of discretion standard. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003); Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007). This standard cannot be applied in a vacuum nor based only upon the words of the juror․
Kentucky Criminal Rule (“RCr”) 9.36 states clearly that “when there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” ․
In our landmark case Shane, Justice Noble reaffirmed this Court's commitment to jury selection which is free of bias or prejudice. 243 S.W.3d 336.
“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.” (Id. at 338).
Sluss v. Commonwealth, 450 S.W.3d 279, 282 (Ky. 2014), overruled on procedural grounds by Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019).
The problem here is that Young identifies the use of one peremptory strike for four potential jurors, three of whom sat on the panel.
The next requirement to preserve a for cause strike error has never been addressed directly by this Court. Specifically, that the number of jurors a litigant identifies on her strike sheet must be the same number of jurors the litigant originally moved to strike for cause. Failure to abide by this rule will render the error unpreserved.
The need for such a rule is plainly demonstrated in this case. Here, [appellant] only identified one juror to strike for cause: Juror A. But later, [appellant] identified two jurors she would have used peremptory strikes on: Juror 4283 (Juror B) and Juror 4293 (Juror C). When [appellant] identified these jurors [opposing counsel] had already used a peremptory strike on Juror B, and Juror C ultimately sat on the jury. But, as a matter of law, [appellant] was not permitted to request two additional peremptory strikes because she only identified one juror to be struck for cause. The purpose of identifying additional peremptory strikes in the first place is to identify jurors a litigant would have struck had she not been forced to use them on a juror she believed should have been struck for cause. Therefore, identifying two jurors she would use peremptory strikes on presupposes [appellant] asked the court to strike two jurors for cause. Accordingly, she was improperly asking the court for an additional peremptory strike. That all parties to a case must have an equal number of peremptory strikes to ensure fairness is clearly codified in this Commonwealth's statutes․
․ [I]f a juror the litigant identifies as a would-be peremptory strike does not ultimately sit on the jury, any error the trial court committed is effectively cured. Again, [appellant] was only permitted to identify one additional peremptory strike. If [appellant] chose Juror B, the trial court's error would have been cured because [opposing counsel] struck Juror B and therefore Juror B did not sit on the jury. In contrast, if [appellant] chose Juror C the error would not have been cured because Juror C sat on the jury. But we have no way of knowing which juror [appellant] would have picked if the proper procedure was followed. This further bolsters our conclusion that this error is not properly preserved for our review, and that a one-to-one ratio rule of for cause strikes and would-be peremptory strikes is necessary.
Floyd, 590 S.W.3d at 251 (emphasis original) (italics added). We thus find that this issue was not properly preserved for review, problematic as the juror's reticence may be.
Young thirdly contends that the circuit court abused its discretion in denying his request for a missing evidence instruction because of the baseball bat's destruction prior to trial. The bat, Young argues, was a necessary element for proving assault in the second degree, which requires use “of a deadly weapon or a dangerous instrument.” Kentucky Revised Statute (KRS) 508.020(1). Young also insists that the bat could have proven exculpatory should it have been available for testing.
The missing evidence instruction should be given when material evidence within the exclusive possession and control of a party, or its agents or employees, was lost without explanation or is otherwise unaccountably missing, or was through bad faith, rendered unavailable for review by an opposing party. When appropriately given, the missing evidence instruction allows the jury, upon finding that the evidence was intentionally and in bad faith destroyed or concealed by the party possessing it, to infer that the evidence, if available, would be adverse to that party or favorable to his opponent. University Medical Center, Inc. v. Beglin, 375 S.W.3d 783, 792 (Ky. 2012). When it is established that the evidence was lost due to mere negligence or inadvertence, which, in effect, negates a finding of bad faith, the missing instruction should not be given. Id. at 791 (citing Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009)).
Here, the disappearance of the evidence appeared to result from negligence arising out of the consolidation of the two labs. Pursuant to the foregoing rules Appellant was not entitled to a missing evidence instruction. Accordingly, upon retrial, ․ the missing evidence instruction is not required.
Ordway v. Commonwealth, 391 S.W.3d 762, 793 (Ky. 2013) (footnote omitted).
“An appellate court reviews a trial court's decision of whether to give a missing evidence instruction for an abuse of discretion.” Madden, 582 S.W.3d at 69 (citing Beglin, 375 S.W.3d at 790-91). We find no such abuse of discretion here. Furthermore, the record reflects that the circuit court permitted defense counsel to argue the bat's potentially exculpatory properties during closing argument.
Our final issue for consideration is whether it was error for the circuit court to permit the introduction of the late victim's videotaped testimony. Here the circuit court ruled that Walker's testimony was permissible under Kentucky Rule of Evidence (KRE) 804(b)(1), which states:
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
There is no question that Walker was unavailable. See KRE 804(a)(4). The question is whether the admission of her testimony violated Young's right to confront and cross-examine Walker. We agree with the circuit court that it did not.
We have recognized that other types of violations of the Confrontation Clause are subject to that harmless-error analysis, and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.
Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S. Ct. 2798, 2803, 101 L. Ed. 2d 857 (1988) (citation omitted).
Here, as the Commonwealth counters, possible changes in defense strategy are not sufficient to overcome Young's burden of proving that the error was not harmless.
Furthermore, because the deposition was videotaped in the courtroom with the witness in the witness box, the jury was able to “weigh the demeanor of the witness” in a courtroom setting. Barber v. Page, [390 U.S. 719,] 725, [88 S. Ct. 1318,] 1322[, 20 L. Ed. 2d 255 (1968)]. Nor was Appellant denied the right of cross-examination or the right to “meet the witness[ ] face to face.” Ky. Const. § 11. A judge presided over the testimony just as would have occurred at trial. Thus, we conclude that even if there had been error, it would have been harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967) (even constitutional errors are subject to harmless error analysis).
Parson v. Commonwealth, 144 S.W.3d 775, 785 (Ky. 2004). We hold that the circuit court did not err in permitting the videotaped testimony of the deceased witness.
The judgment of the Jefferson Circuit Court is affirmed.
1. Complaining witness Pamela Walker had passed away from causes unrelated to the injuries suffered because of the assault. In its reversal of Young's first conviction, the Kentucky Supreme Court held: “We are constrained to conclude that Appellant was denied the right to hybrid counsel under the Kentucky Constitution and was thus deprived of the opportunity to pursue his own strategies for his defense. We make no judgment about the wisdom of his motion to evaluate the competence of the complaining witness, nor do we suggest that his motion should have been granted, but the making of the motion would not have violated any procedural rules. The failure to provide a defendant with the option of hybrid counsel is structural error and requires reversal of his conviction. Mitchell v. Commonwealth, 423 S.W.3d 152, 162 (Ky. 2014) (citing Baucom [v. Commonwealth], 134 S.W.3d [591, 592 (Ky. 2004)) ].” Young, supra, at *2. Young contends, in this appeal, that his continued trial strategy of challenging Walker's competence could not be achieved because of her unavailability as a witness.
2. Cf. Ward v. Commonwealth, 587 S.W.3d 312, 327 (Ky. 2019), which now holds: “Moving forward, however, this Court finds it necessary to instate a new rule with respect to juror errors: To complain on appeal that a party was forced to use one of the party's peremptory challenges because of the trial court's erroneous failure to grant a for-cause strike, the defendant must use a peremptory strike on that juror and show that the peremptory strike was used on their strike sheet. The defendant must then designate, again on his peremptory strike sheet, the jurors he would have struck had the peremptory strike been available to him. We recognize trial practice varies across the Commonwealth, but we find it necessary to require each of these designations to appear clearly on the party's strike sheet to achieve for appellate review a precise preservation of alleged jury-selection errors.” Because Young had attempted to obtain the written juror strike sheets but was told by the circuit court clerk that the sheets could not be found, Young will not be held to the preservation standards in Ward.
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Docket No: NO. 2018-CA-001415-MR
Decided: May 22, 2020
Court: Court of Appeals of Kentucky.
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