Filed: Mar. 21, 2014
Latest Update: Mar. 21, 2014
Summary: NOT TO BE PUBLISHED OPINION VANMETER, Judge. The appellant, Keith Kingsley, appeals a judgment of conviction entered by the Union Circuit Court alleging that statements made by Commonwealth during voir dire amounted to palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. We disagree and the judgment is affirmed. Kinglsey was charged and convicted in relation to an automobile accident that resulted in the death of Cody Vaughn. Kingsley's defense strategy relied on the assert
Summary: NOT TO BE PUBLISHED OPINION VANMETER, Judge. The appellant, Keith Kingsley, appeals a judgment of conviction entered by the Union Circuit Court alleging that statements made by Commonwealth during voir dire amounted to palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. We disagree and the judgment is affirmed. Kinglsey was charged and convicted in relation to an automobile accident that resulted in the death of Cody Vaughn. Kingsley's defense strategy relied on the asserti..
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NOT TO BE PUBLISHED
OPINION
VANMETER, Judge.
The appellant, Keith Kingsley, appeals a judgment of conviction entered by the Union Circuit Court alleging that statements made by Commonwealth during voir dire amounted to palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. We disagree and the judgment is affirmed.
Kinglsey was charged and convicted in relation to an automobile accident that resulted in the death of Cody Vaughn. Kingsley's defense strategy relied on the assertion that Kingsley was not the vehicle's driver, but that the vehicle's owner, Shannon Smith, was driving. The Commonwealth put on evidence from an eyewitness, Mark Cavins, who passed Kingsley's vehicle just before it collided with Vaughn's. Cavins testified that he saw a woman in the passenger seat. Sergeant Chris McKee of the Kentucky State Police testified, based on his experience reconstructing accidents, that both Kingsley and Smith were ejected from the vehicle and that the location of their bodies after the crash indicated that Kingsley was driving. Indeed, Officer McKee testified that, based on the laws of physics, Kingsley must have been driving. Smith testified that she did not remember who was driving, but that she did not let other people drive her truck, unless she was intoxicated. Toxicology reports indicated that both Smith and Kingsley were intoxicated.
Kingsley's defense questioned the reliability of Cavins's testimony based on his vantage point and highlighted the fact he mistakenly reported that the passenger was blonde. Kingsley also asserted that Officer McKee's testimony might simply be wrong; however, Kinglsey did not put on testimony to controvert Officer McKee's reconstruction. At the conclusion of the trial, Kingsley was convicted of reckless homicide, operating a vehicle under the influence of alcohol, and for being a persistent felony offender.
On appeal, Kingsley contends that the Commonwealth made improper statements regarding the definition of "reasonable doubt" during voir dire. Specifically, the Commonwealth stated:
Our burden is to prove this case to you beyond a reasonable doubt. I'm not going to try to define reasonable doubt to you, I don't think anybody can. But, essentially, although there may be some doubt in your mind, if you are more certain than not then you're pretty much at that point, beyond a reasonable doubt. We all have doubts about things. I'm going to leave it at that. But we have to prove that case and we have to convince you beyond a reasonable doubt. It's not a shadow of a doubt. It's not beyond any doubt. As I said, we may all have doubt and misgivings. It's a serious case with serious consequences. What I'm asking you is will you require any higher burden of us than what the law requires us to prove? Will you require the Commonwealth to eliminate all doubt from your mind before you'll make a determination? Is anybody going to be in that category? If you are then raise your hand.
Kingsley contends that this improper definition led the jury to believe that the standard was "preponderance of the evidence" as opposed to "beyond a reasonable doubt." The alleged error is unpreserved.
Relief from an unpreserved error "may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26. We are therefore required to apply a palpable error standard of review. In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme Court discussed the palpable error rule of RCr 10.26, and stated:
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006).
283 S.W.3d at 668.
Under the clear holding of Jones, palpable error relief is not available unless three conditions are present. The error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding to have been jurisdictionally intolerable.
As a general rule, both defense counsel and the prosecution are prohibited from defining the term "reasonable doubt." Callahan v. Commonwealth, 675 S.W.2d 391, 393 (Ky. 1984). However, statements regarding "reasonable doubt" are not categorically forbidden and may be permitted when they define what reasonable doubt is not or indicate that "reasonable doubt" cannot be defined. See Johnson v. Commonwealth 184 S.W.3d 544, 549 (Ky. 2005). In this case, it is unnecessary for us to reach a conclusion regarding the statements because, even if the Commonwealth's statements were improper, they did not result in manifest injustice. In light of the whole case, in particular the strong evidence of guilt presented by the Commonwealth, we do not believe that a substantial probability exists that the jury would have acquitted Kingsley had the comments not been made. Indeed, there was eyewitness testimony that the passenger was a woman and testimony by the investigating officer that Kingsley must have been driving. Thus, we are unable to say that the statements were so prejudicial that they impacted the result of the trial.
For the reasons set forth above, the judgment of conviction is affirmed.
ALL CONCUR.
