Appellant, Jamarkos Campbell, appeals as a matter of right, Ky. Const. § 110, from a judgment entered upon a jury verdict convicting him of two counts of murder, two counts of first-degree wanton endangerment, two counts of first-degree robbery, and one count of first-degree burglary. For these crimes, Campbell was sentenced to a total sentence of life without the possibility of parole for twenty-five years.
Campbell now raises the following arguments on appeal: (1) that his rights were violated by the taking of a DNA sample without legal authority and in violation of medical protocols, and the entering of the sample into the Kentucky Combined DNA Index System (CODIS) database; (2) that his waiver of a juvenile transfer hearing was invalid; (3) that the first-degree burglary instruction was erroneous; (4) that the trial court erred by failing to give a voluntary intoxication instruction on the burglary and robbery charges; (5) that the prosecutor made improper statements in closing arguments impugning the integrity of defense counsel; (6) that the adult convictions for crimes committed after the present crimes were improperly admitted during the sentencing phase; and (7) that the trial court erred in submitting for the jury's consideration the penalty of life without the possibility of parole for twenty-five years on the two murder charges. For the reasons stated below, we affirm.
In the light most favorable to the verdict, the facts are as follows. Campbell was born on February 6, 1985. In February 2002, Campbell and his accomplices in the present crimes, Matthew Tolson, Nicholas Mundy, Deonte Simmons, and Charles Smith (collectively, codefendants) were friends who considered themselves to be members of the "Crips" gang. Campbell was five days short of being seventeen years old on the date of the crimes. Several of the codefendants were friends with a girl who told them about her drug dealer, Ryan Shangraw, who lived in a trailer in Lincoln County.
Believing that Shangraw would be a good target for a robbery, on February 1, 2002, the codefendants traveled to Lincoln County for that purpose. In preparation for the robbery the group obtained firearms, including a rifle and two handguns, and each got a bandanna to wear as a disguise. The group smoked marijuana and drank on the way to Shangraw's trailer.
In the meantime, Shangraw, Bo Upton, Tabitha Wilder, and Tara Strunk had gathered at Shangraw's trailer prior to their planned attendance at a high-school dance. As they were socializing and smoking marijuana, four of the codefendants, led by Campbell wielding the rifle, burst into the trailer and demanded drugs and money. Shangraw and Upton told them to "calm down and we'll get you what you want," and Shangraw got up and started toward the kitchen. Chaos erupted as the girls at the trailer screamed and begged for their lives. As Shangraw walked toward the kitchen, Campbell shot and killed him.
Upton then stood up and threw his wallet toward the group. The pandemonium escalated and numerous shots were fired in the small living room of the trailer. As a result, Upton was also shot and killed. Wilder was shot in the arm, and Strunk's arm was grazed by a bullet.
The group made a successful getaway, and as they fled from the scene they discarded the guns and bandannas, including Campbell's. These discarded items were recovered by police shortly after the shootings. Campbell's bandanna was subsequently tested for DNA, and the resulting DNA data was uploaded into the CODIS system. However, despite this physical evidence no leads developed and the crimes remained unsolved.
In 2006 Campbell, incarcerated in the Madison County jail on an unrelated matter, was caught in possession of contraband. He had placed the contraband in his mouth, and spit it out as his cell was being searched. A DNA sample, taken to link him to the contraband, was entered into CODIS. That sample was found to match the one entered into CODIS from one of the bandannas found by police after the Lincoln County murders. This match led the police investigating the Lincoln County incident to Campbell.
Campbell was interviewed and eventually he admitted to being present at the Lincoln County crimes, though he denied entering the trailer or shooting anyone. His statements, and further investigation, led to arrest of the other codefendants.
On April 18, 2008, a juvenile complaint was filed charging Campbell, then 23 years-old, with two counts of murder and two counts of first-degree assault in connection with the events of February 1, 2002. The Commonwealth moved to transfer the case to circuit court pursuant to KRS 635.020(2), and Campbell, at the same time, filed a motion to waive his right to a transfer hearing. Lincoln District Court accordingly, pursuant to Campbell's request, granted transfer for trial of Campbell as an adult without conducting a transfer hearing.
On July 26, 2008, Campbell was indicted for two counts of murder, two counts of attempted murder, two counts of first-degree robbery, and one count of first-degree burglaiy. Trial was held in May 2009.
Campbell first argues that the DNA sample taken from him at the Madison County jail in 2006 was unlawfully obtained without a warrant or consent; was taken in violation of prescribed medical protocols designed to insure the integrity of the sample; and was then impermissibly uploaded into CODIS without any statutory authority for doing so.
As previously discussed, following the commission of the crimes at Shangraw's trailer, the police recovered a bandanna, tested it for DNA, and loaded that DNA into the CODIS database. In due course, the unknown 2002 sample from the bandanna was matched with Campbell's known 2006 sample taken at the Madison County jail.
Campbell filed a motion seeking to suppress the DNA match, arguing that the taking of the 2006 sample "was performed in violation of KRS 17.170 and 502 KAR 32:010 which require that a DNA sample ... be obtained in a medically approved manner by [medically trained personnel]." He later expanded his argument to allege that the 2006 sample was obtained pursuant to a warrantless seizure in violation of the Fourth Amendment, and that the sample was uploaded into CODIS without statutory authorization.
At a hearing held on February 27, 2009, the Commonwealth argued that the 2006 DNA sample was properly taken and properly loaded into CODIS. Defense counsel argued otherwise, noting that his "argument is stated in the record." Campbell's counsel observed, "We do not have all the information on that [obtaining the 2006 DNA sample] without a hearing." However, Campbell did not seek to call any witnesses to further develop the circumstances surrounding the taking of the 2006 sample, nor did he request a continuance to allow him to present additional evidence on the issued.
The trial court addressed the DNA suppression issue as follows:
We now review Campbell's two arguments regarding the DNA sample: 1) the actual taking of the 2006 sample at the Madison County jail; and 2) the loading of the DNA data into CODIS.
Campbell contends that the 2006 DNA sample was taken without a warrant and without his consent, and that it was obtained without compliance with the applicable medical and evidentiary protocols contained in 502 KAR 32:010.
However, because of Campbell's failure to present evidence during the February 27, 2009 hearing, the record contains no evidence from which we can determine whether the sample was obtained by consent, or by warrant, or if either consent or a warrant was necessary under the circumstances. Nor, do we find any testimony concerning the medical procedures surrounding the taking of the sample. In summary, there is nothing for us to review except the parties' competing arguments.
The trial court complied with its duty to afford Campbell a hearing on the issue,
Campbell next argues that "[e]ven if the swab was properly obtained, the results of the 2006 DNA testing by the [Kentucky State Police] lab were improperly uploaded to the DNA database which is established by KRS 17.170 since that sample did not fit any of the categories which may be uploaded to the database."
The present version of KRS 17.170 broadly provides for the collection of DNA samples, allowing, for example, for the collection of a DNA sample from "[a]ny person convicted on or after March 27, 2009, of a felony offense under the Kentucky Revised Statutes[.]" However, the version of the statute in effect when the DNA sample was taken from Campbell in 2006 was far more limited, providing for samples to be taken and uploaded only in the case of sex offenses under KRS Chapter 510 or certain other crimes (which did not include the possession of cocaine).
Again, our review of this issue is hindered because the record does not include the details surrounding the uploading of the 2006 sample into the CODIS database. Nevertheless, even if the entry of the sample into the database was flawed, the trial court properly denied suppression of the DNA evidence. In Johnson v. Commonwealth, 327 S.W.3d 501 (Ky. 2010), the defendant in that case similarly contended that entry of his DNA profile into the CODIS database was illegal because he had never been convicted of an offense requiring the DNA profile be entered. Id. at 509. While we noted that Johnson had failed to present evidence that any DNA profile identified as his was posted on CODIS in violation of the statute, we held that "[e]ven if such had occurred, this would amount to at most a statutory violation and not a constitutional violation and, thus, would not entitle him to suppression [of the DNA evidence]." Id. at 511 (citing Saylor v. Commonwealth, 144 S.W.3d 812, 817 (Ky. 2004) (holding that the exclusionary rule only requires exclusion of evidence obtained in violation of constitutional rights and that exclusion of evidence obtained in violation of statutory rights is not necessarily required)). Applying this principle, even if under the particular circumstances of his case, the applicable version of KRS 17.170 did not authorize the uploading of his DNA sample, Campbell would not have been entitled to suppression of the DNA evidence for this statutory violation. It follows that the trial court did not err by denying Campbell's motion to suppress the DNA evidence upon the grounds stated.
Campbell next argues that his conviction should be vacated because his waiver of his right to a juvenile transfer hearing was invalid. This case began with the filing of a Juvenile Complaint on April 18, 2008, in Lincoln District Court pursuant to KRS 610.020 and KRS 620.070 alleging two counts of murder and two counts of first-degree assault. Also at this time, a warrant for Campbell's arrest on the charges was issued.
On April 22, 2008, the Commonwealth filed a motion to try Campbell as an adult (i.e., as a Youthful Offender) and to transfer his case to Lincoln Circuit Court pursuant to KRS 635.020(2) and 640.010(2). As part of this motion the Commonwealth requested that the Lincoln District Court "... hold a preliminary hearing in this matter to determine if this child should be transferred to the Lincoln Circuit Court as a Youthful Offender." In the meantime, however, Campbell filed a motion captioned "Motion to Waive Transfer Hearing" seeking "to waive his proposed transfer hearing pursuant to Humphrey v. Commonwealth, 153 S.W.3d 854 (Ky. App. 2004)."
The motion acknowledged that Campbell "realizes that due to his age and the level of his charges he qualifies to be transferred [to circuit court] pursuant to KRS 635.020(2)." The motion further stated, "[t]hat his motion to waive the transfer hearing is done knowingly, intelligently and voluntarily and the juvenile realizes that by waiving the transfer hearing he will be tried as an adult." The motion was signed by Campbell and his attorney.
Campbell appeared in district court on April 22, 2008, at which time he entered a plea of not guilty to the charges contained in the Juvenile Complaint. The discussion then turned to the transfer issue. The prosecutor referred to the transfer motion that the Commonwealth had filed and Campbell's associated right to a hearing. The prosecutor then stated that he understood that Campbell was waiving his right to a hearing, but "if not [the Commonwealth] would request a date [for the hearing]." Campbell's attorney referred to the waiver motion and explained that she had gone over the motion with Campbell and that he had agreed to the waiver. Counsel stated that Campbell understood that by waiving his transfer hearing he could be tried as an adult without a hearing. The court then asked Campbell, "Mr. Campbell do you understand that sir?" Campbell answered, "yes sir." The court then asked Campbell, "is your attorney correct, you're wanting to waive any such transfer hearing and understand that the matter [will] be transferred up to the circuit court where you could be tried as an adult?" Campbell again answered, "yes sir."
Notwithstanding the motion for waiver and the in-court representations of counsel and Campbell himself, he now contends that there is insufficient evidence that his right to a hearing was knowingly and voluntarily waived, and that his convictions are therefore invalid because the circuit court never obtained jurisdiction over his case.
Both Campbell and the Commonwealth cite Humphrey in support of their respective positions. "The import of a child being transferred from district court to circuit court is that the child loses the greater procedural protections and provisions of the juvenile justice system and is held for trial under adult procedures." Humphrey, 153 S.W.3d at 857. Humphrey squarely held that a child could waive his right to a transfer hearing because the provisions of KRS 600.010(2)([g]) provide that the "protections [of KRS Chapters 600 to 645, the Kentucky Unified Juvenile Code] belong to the child individually and may not be waived by any other party," and thus the Code specifically anticipates such waivers. Id.
Nevertheless, a waiver is the voluntary relinquishment of a known right. See Hemdon v. Wingo, 404 S.W.2d 453, 455 (Ky. 1966). "Thus, in order for there to be a valid waiver of [a juvenile's] right to a preliminary hearing to determine if his case should be transferred to circuit court, there must be proof that [the juvenile] voluntarily gave up a right that he knew he had." Humphrey at 858. With this principle in mind, Humphrey held "that the court must inform the child of the right to the preliminary hearing and ensure that the waiver of this right is voluntarily, knowingly and intelligently made." Id.
In summary, the record must demonstrate that the juvenile is aware of the consequences of his decision to forego a transfer hearing. In addition, Humphrey mandates that the factors contained in KRS 640.010(2)(b)
It bears emphasis, however, that Humphrey expressly noted that an important consideration in its holding was "the fact[] that children require special considerations due to their intelligence and experience," and that heightened assurances are therefore necessary to ensure due process and fair treatment of the child so that he is not deprived of the special protections of the juvenile justice system. Id. at 859. Thus fundamental to the holding in Humphrey is that both the crime and waiver of the transfer hearing occurred when the juvenile was under the age of eighteen.
While we agree with the principles as stated by the Court of Appeals in Humphrey, we do not believe that they apply with the same vigor in the present case. Unlike the fifteen-year-old child in Humphrey, Campbell was a twenty-three year old man at the time of his waiver proceedings. And further, by the time of the waiver, Campbell was familiar with the court system, having been convicted of several adult crimes in circuit court. Thus, Campbell and the juvenile in Humphrey are not similarly situated.
In his signed motion, Campbell expressly stated that he "realizes that due to his age and the level of his charges he qualifies to be transferred pursuant to KRS 635.020(2)," and that his "motion to waive the transfer hearing is done knowingly, intelligently and voluntarily and the juvenile realizes that by waiving the transfer hearing he will be tried as an adult." At the waiver proceedings, Campbell's attorney stated to the court that she had gone over the motion with Campbell and that he had agreed to the waiver. The court then had Campbell verify that he understood what he signed and that he knew the case was to be transferred to circuit court.
Upon our review of the totality of the circumstances, particularly given the representations of Campbell and his attorney to the court; his age at the time of the waiver; his experience with the adult criminal justice system at the time of the waiver; and the fact that his motion for a waiver obviated the Commonwealth's specific request for a transfer hearing, we conclude that no due process violation occurred in the waiver of Campbell's right to a juvenile transfer hearing.
The first-degree burglary instruction attempted to provide that Campbell could be convicted under either a principal actor theory (if he entered the trailer) or a complicity theory (if he did not enter the trailer but aided and abetted those who did). Campbell next contends that the complicity language of the instruction was defective because it failed to include a provision requiring the jury to find that Campbell aided and abetted others who entered the trailer.
The first-degree burglary instruction read as follows:
KRS 502.020(1) provides, in relevant part, that a person is guilty of complicity to an "offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he . . . (b) [a]ids, counsels, or attempts to aid such person in planning or committing the offense . . . .").
Campbell correctly notes that the instruction given was defective because the instruction omitted the element that to be found guilty under a complicity theory he must have aided, counseled, or attempted to aid the principal actor(s) in the burglary. Because of this omission, we agree with Campbell that the instruction was defective. The Commonwealth concedes the error.
"[A]n erroneous jury instruction is presumed to be prejudicial; and a party claiming such an error to be harmless bears the heavy burden of showing that no prejudice resulted from it." Sanders v. Commonwealth, 301 S.W.3d 497, 499 (Ky. 2010) (Use of defendant's prior conviction for possession of drug paraphernalia, second offense, as predicate offense to convict him of being a first-degree persistent felony offender was reversible error, even though there was also evidence of other, usable prior felony convictions).
We are convinced, however, that under the circumstances of this case, that any error was harmless. Central to this conclusion is that Campbell was convicted of the intentional murder of Shangraw as a principal, meaning the jury found, as theorized by the Commonwealth, that Campbell entered the trailer and personally shot Shangraw. In light of the jury's determination that Campbell entered the trailer and shot Shangraw, it is inconceivable that the jury found Campbell guilty under the complicity language of the burglary instruction rather than as a principal actor who entered into the trailer himself. We may therefore say "beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained." Stewart v. Commonwealth, 306 S.W.3d 502, 508 (Ky. 2010) (Stating that constitutional harmless error standard applies to jury instruction error where element of crime is omitted). Because we conclude that the error is harmless, Campbell is not entitled to relief as a result of the deficient instruction.
Campbell next contends that the trial court erred by failing to give a voluntary intoxication instruction for the specific intent crimes of first-degree burglary
KRS 501.080 provides that:
Thus, voluntary intoxication may be a defense where it negates "the existence of an element of an offense" most often, the mens rea element. However, "voluntary intoxication does not negate culpability for a crime requiring a culpable mental state of wantonness or recklessness, but it does negate specific intent." McGuire v. Commonwealth, 885 S.W.2d 931, 934 (Ky. 1994). Accordingly, we have held that a voluntary intoxication instruction is warranted where, "from the evidence presented, a jury could reasonably conclude that the defendant was so intoxicated that he could not have formed the requisite mens rea for the offense." Fredline v. Commonwealth, 241 S.W.Sd 793, 797 (Ky. 2007). However, this defense presents a high bar, because "there must be evidence not only that the defendant was drunk, but that [he] was so drunk that [he] did not know what [he] was doing." Springer v. Commonwealth, 998 S.W.2d 439, 451-52 (Ky. 1999). Thus, "mere drunkenness will not raise the defense of intoxication." Rogers v. Commonwealth, 86 S.W.Sd 29, 44 (Ky. 2002).
The failure to give a voluntary intoxication instruction on the burglary and robbery charges was apparently an oversight, because the instruction was included with the murder and first-degree manslaughter instructions, and for the attempted murder and second-degree assault instructions.
However, we are not persuaded that the trial court's failure to give a voluntary intoxication instruction resulted in palpable error. The jury rejected Campbell's voluntary intoxication defense by finding him guilty of the first-degree murder of Shangraw, instead of the lesser crime of second-degree manslaughter, which is the proper conviction for a murder under circumstances of voluntary intoxication. See Caudill v. Commonwealth, 120 S.W.3d 635, 669 (Ky. 2003) ("The defense of voluntary intoxication does not warrant an acquittal but reduces the offense from murder to second-degree manslaughter.") The jury having failed to find that Campbell was intoxicated to such a degree as to negate his intent in the shooting of Shangraw, it is not likely, if given the opportunity, they would have found him to have been so drunk as to negate his intent in relation to the burglary and robbery charges. Therefore, a substantial possibility does not exist that the result of the trial would have been different without the error, there was no manifest injustice, and, accordingly, Campbell is not entitled to relief under the palpable error standard. Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997).
Campbell next argues that he is entitled to relief because in his closing argument the prosecutor repeatedly impugned the character of defense counsel in violation of his constitutional right to a fair trial. He concedes this alleged error is not preserved, but requests palpable error review under RCr 10.26.
More specifically, Campbell alleges that the following comments by the prosecutor exceeded acceptable standards:
In any consideration of alleged prosecutorial misconduct, particularly, as here, when the conduct occurred during closing argument, we must determine whether the conduct was of such an "egregious" nature as to deny the accused his constitutional right of due process of law. Donnelly v. DeChristoforo, 416 U.S. 637 (1974). "Any consideration on appeal of alleged prosecutorial misconduct must center on the overall fairness of the trial. In order to justify reversal, the misconduct of the prosecutor must be so serious as to render the entire trial fundamentally unfair." Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004). However, it is well established that prosecutors have wide latitude in their closing arguments, and may attempt to convince jurors that the matter before them should not be dealt with lightly. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006), which would include taking seriously the verity of the testimony and trial counsel's corresponding comments.
As stated by The United States Court of Appeals for the Sixth Circuit:
Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008) (internal quotation marks, brackets, and citations omitted).
While we stop short of approving of the prosecutor's specific comments, it is clear that they were made for the purpose of portraying the alternative theories raised by defense counsel as false; however, a prosecutor is permitted to do this in his closing arguments. "A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987) (where prosecutor accused trial counsel of pulling a "scam," and questioned the sharpness of counsel held to be "well within the proper bounds of a closing argument and certainly did not affect the outcome of the trial."). Upon the whole, the comments here are not so much different than characterizing defense counsel's arguments as a scam, which we have previously held to be within the bounds of commenting upon unlikely defense theories. Id.
Upon consideration of the overall trial and the context in which the comments in question were made, we do not find a substantial possibility that the prosecutor's comments affected the overall fairness of the proceedings. Thus, we decline to find that the comments rise to the level of palpable error. Brock, 947 S.W.2d at 28.
Campbell next contends that the trial court erred by permitting the Commonwealth to introduce three convictions he received after he had turned eighteen and, obviously, after the present crimes were committed. He argues that while the introduction of subsequent crimes may be proper in cases where the crimes being tried were committed as an adult, because Campbell was a juvenile when he committed the present crimes, the prior convictions are not admissible during the sentencing phase.
We first note that KRS 532.055(2)(a)
In Templeman v. Commonwealth, 785 S.W.2d 259 (Ky. 1990), a death penalty case, we stated:
While Templeman was considering prior convictions under KRS 532.025 in the death penalty context, there is no reason to apply a more restrictive rule in a non-death penalty case. Nor is there any reason to suppose that a different rule should apply where the accused was a juvenile when he committed the underlying crime, especially in light of KRS 532.055(6), which provides that even juvenile criminal records "shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult." Accordingly, we are persuaded that Templeman controls the result, and that the trial court properly admitted the prior convictions.
Finally, citing to Roper v. Simmons, 543 U.S. 551 (U.S. 2005) and Graham v. Florida, 130 S.Ct. 2011 (2010), Campbell argues that he may not be sentenced to life without the possibility of parole for twenty-five years (LWOP 25) because the alleged crimes were committed while he was under the age of eighteen.
In Roper, the United States Supreme Court held that the execution of offenders who were under eighteen years of age at time their crimes were committed is prohibited by the Eighth and Fourteenth Amendments of the United States Constitution. Roper, 543 U.S. at 579 (abrogating Stanford v. Kentucky, 492 U.S. 361 (1989)). In Graham, the United States Supreme Court held that the Eighth Amendment prohibits imposition of a sentence of life without the possibility of parole on a juvenile offender who did not commit a homicide. Id. at 2034.
Campbell's reliance on Roper and Graham is misplaced. Roper addressed the execution of a juvenile offender and thus has no applicability to the constitutionality of a sentence of LWOP 25. Indeed, Roper would permit a juvenile offender to be sentenced to life without the possibility of parole for a murder conviction — a sentence greater than that imposed on Campbell. Roper, 543 U.S. at 572 ("To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.")
Similarly, Graham was limited to addressing the issue of life without the possibility of parole for a noncapital crime, "The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release. but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Graham, 130 S.Ct. at 2034. A sentence of LWOP 25 falls comfortably within this holding, as it provides the juvenile with some realistic opportunity to obtain release before the end of his life sentence.
In summary, neither Roper nor Graham holds that a sentence of LWOP 25 is constitutionally impermissible. We further note that KRS 640.040(1) provides as follows:
(Emphasis added). Thus our legislature has specifically authorized LWOP 25 as a proper sentence for a youthful offender.
Campbell also argues that LWOP 25 is an improper sentence because it is categorized under KRS 532.025 for heightened scrutiny,
In summary, we hold that there is no constitutional or statutory bar to imposing a sentence, under the circumstances we address, of LWOP 25 upon an offender who committed the underlying crime when he was under the age of eighteen.
For the foregoing reasons, the judgment of the Lincoln Circuit Court is affirmed.
All sitting. All concur.
