Opinion of the Court by Chief Justice MINTON.
Rocky Brown was shot and killed while attempting to hold the door to prevent a forced entry into Adolphus Stone's home. A circuit court jury convicted Henny Gunn (a/k/a Henry Gunn) and Steven Paulley of, among other offenses, murdering Brown. Both Gunn and Paulley separately appealed to this Court as a matter of right.
Nine people, including three children, were present at the home Stone shared with his girlfriend. Someone knocked on the door and identified himself as B.J. The knocking became pounding and kicking, and Brown put his weight against the door to hold it closed. A shot fired through the door struck and fatally wounded Brown, who had leaned his back and shoulder against the door. When the police arrived, they could not get in through the front door because Brown was still holding the doorknob.
In the course of their investigation, the police learned of Stone's ongoing feud with Eric Ward. Eventually, Ward, Paulley, Gunn, and Eric Taylor were charged in relation to Brown's death. Two weeks before trial, Ward and Taylor agreed to
Both Gunn and Paulley raise numerous, often-overlapping issues. We will discuss the failure to strike a juror for cause issue first because it is dispositive. We will then briefly discuss only those issues that are potentially dispositive or are necessary for guidance upon remand.
During voir dire, prospective juror # 220248 stated that she was a civilian who previously had served as a training instructor for the Indianapolis Police Department. She also stated that she had many relatives in law enforcement, none of whom lived in Kentucky. She disclaimed any bias because she did not know any of the officers involved in these cases.
Later on in voir dire, prospective juror # 220248 stated that she had been a burglary victim several times, both as a child and as an adult. Nonetheless, she insisted that she could be fair and impartial in these burglary and murder cases.
Finally in voir dire, prospective juror # 220248 stated that her son had been the victim of a robbery involving a firearm. When asked, the prospective juror admitted that she was not sure she could listen to the evidence and not allow her previous experience to cloud her ability to consider these cases. Defense counsel asked if the prospective juror's prior experience would interfere with her ability to be fair and impartial, to which the woman responded that she was not sure.
Over the Commonwealth's objection, defense counsel later moved to strike prospective juror # 220248 for cause. The trial court said it would have liked to question this prospective juror further but denied the motion to strike for cause because the court believed the juror had not expressed anything that could prevent her from serving as a juror. Defense counsel then was forced to use a peremptory strike to remove prospective juror # 220248.
Kentucky Rules of Criminal Procedure (RCr) 9.36(1) provides a juror should be struck for cause "[w]hen there is reasonable ground to believe that . . . juror cannot render a fair and impartial
Gunn and Paulley admit neither identified any additional jurors he would have struck if he had not been forced to use a peremptory strike on juror # 220248. The Commonwealth argues that such a failure is fatal to Gunn's and Paulley's claims. We disagree.
Gunn and Paulley's joint trial occurred in September 2008. We did not make definite our requirement that defendants set forth the names of other jurors they would have struck until October 2009— over a year after Gunn and Paulley's trials.
Having dealt with the procedural aspects of this issue, we may now analyze it on the merits. A properly qualified juror must be impartial, which former United States Supreme Court Chief Justice Charles Evans Hughes described as
The fact that prospective juror # 220248 had personal and familial ties to law enforcement does not automatically disqualify her from sitting as a juror on the case.
But far more troubling is the fact that prospective juror # 220248 was unable to disclaim any bias stemming from being the mother of a crime victim. In fact, she stated she might not be able to put out of her mind the fact that her son was a victim of an armed robbery. When asked directly whether she could be fair and impartial, the juror stated she was not sure. The juror's hesitancy is highlighted all the more because it stands in marked contrast to her quick disclaimer of any bias stemming from her law enforcement ties and experience.
Unfortunately, this issue was not deeply explored by follow-up questions. The last word on this crucial subject was the juror's honest-seeming expression of doubt about her ability to be fair and impartial. From this scant record, the Commonwealth asks us to assume a lack of bias while Gunn and Paulley ask us to assume bias. As stated previously, however, we must afford a criminal defendant the benefit of the doubt as it pertains to a juror's ability to be impartial. After all, perhaps nothing strikes more at the heart of having a fundamentally fair trial than does the seating of an appropriately impartial jury. Yet, to rule in favor of the Commonwealth, we would be required to find impartial a juror who refused to so categorize herself. In other words, taking into account all the facts and circumstances, there is nothing
In the absence of anything concrete to show this juror could have set aside the feelings she held as the mother of a crime victim, we are forced to conclude "there is reasonable ground to believe that . . . juror [#220248] cannot render a fair and impartial verdict on the evidence, . . ."
The trial court's erroneous failure to grant the motion to strike prospective juror #220248 for cause "deprived the defendants] of a substantial right" and, ultimately, led Gunn and Paulley to "not get the trial [they were] entitled to get."
Both Gunn and Paulley contend they were entitled to directed verdicts.
The familiar standard for ruling on a motion for directed verdict is as follows:
Both Gunn and Paulley contend they were entitled to directed verdicts because there was no evidence that either entered Stone's home. The evidence showed that, at most, the front door of Stone's residence opened slightly when it was kicked by Gunn. So Gunn's foot could have crossed the threshold when the door was ajar. The question of whether entry as slight as this is sufficient to support a burglary charge has rarely been addressed by this Court, especially since the adoption of the Kentucky Penal Code in 1974.
As it pertains to this case, a person is guilty of burglary in the first degree if he "with the intent to commit a crime . . .
Other courts have concluded that even a slight entry is sufficient.
Although not cited by the parties, our precedent is in general accord with this "slight entry" rule. At the beginning of the last century, our predecessor Court had to decide whether loosening a window strip—but not actually opening the window —was a sufficient "breaking" to constitute breaking into a warehouse.
After the adoption of the Penal Code, we have, apparently, only had one occasion to address the continued viability of the slight entry rule; and that occasion occurred thirty years ago. In Stamps v. Commonwealth, a defendant was convicted of third-degree burglary based upon his having penetrated into the "air pockets of the concrete blocks" at the rear of a store without having "penetrate[ed] into the store" itself.
So, consistent with precedent and with the viewpoint of other courts, we reaffirm that even a slight entry is sufficient to support a charge of burglary, assuming, of course, the evidence supports all the other requisite elements of a burglary offense, none of which are at issue in these appeals.
Drawing all reasonable inferences in favor of the Commonwealth, a reasonable juror could have concluded that Gunn's foot crossed the threshold of Stone's home when Gunn kicked Stone's front door. So the trial court did not err when it refused to grant Gunn's and Paulley's motions for directed verdict on the burglary charges.
Gunn was convicted of nine counts of wanton endangerment—one count for each person present in Stone's home when Gunn shot through Stone's front door. Gunn contends his conduct did not support a finding of guilt on nine counts of wanton endangerment.
The Court of Appeals has previously rejected this argument. In West v. Commonwealth, a defendant was charged with seven counts of wanton endangerment based upon the seven people who were in the homes into which the defendant fired.
We agree with the conclusions and analysis of the Court of Appeals. We have held that Kentucky's wanton endangerment statute is designed to protect "each and every person from each act coming within the definition of the statute. It is not a statute designed to punish a continuous course of conduct."
Both Gunn and Paulley contend they each were entitled to a directed verdict on
Gunn contends he was entitled to a directed verdict on the murder charge because the Commonwealth's evidence was "scant and unreliable. . . ." In other words, Gunn's argument is not that the Commonwealth failed to present any incriminating evidence against him; rather, his argument is that the evidence presented by the Commonwealth was unreliable or should not be believed.
Gunn's argument appears improperly to characterize the role of a court in ruling on a directed verdict motion. When ruling on a motion for directed verdict, a court "must assume that the evidence for the Commonwealth is true. . . ."
In the case at hand, there is no dispute the Commonwealth presented evidence showing Gunn both fired the shot that killed Brown and admitted to others his involvement in shooting Brown. There also was evidence Gunn knew that at least one person was on the other side of the door when Gunn fired through it, meaning intent to kill may reasonably have been inferred.
Paulley's directed verdict argument involves a somewhat confusing amalgam of what he believes to be insufficient evidence, improper remarks by the Commonwealth, and improper jury instructions. As we understand it, Paulley contends there was insufficient evidence to convict him of intentional murder such that the trial court erred by giving the jury a combination instruction it could have used to find Paulley guilty of either intentional or wanton murder.
First, there was sufficient evidence presented for a reasonable juror to convict Paulley of intentional murder. The Commonwealth presented evidence showing that Paulley and his cohorts— including Gunn—went to Stone's home to rob Stone or exact revenge on Stone in furtherance of Stone's ongoing feud with Eric Ward. Paulley and Gunn went onto
Since Paulley does not argue he was entitled to a directed verdict on a charge of wanton murder and there was sufficient evidence to support a conviction for intentional murder, it was not inherently improper for the trial court to instruct the jury on both theories.
Finally, we reject Paulley's argument for relief based upon the Commonwealth's statements to the effect that the jurors did not have to all agree on whether Paulley was guilty of wanton or intentional murder. We have recently re-emphasized that a jury need not unanimously agree on a specific theory of guilt, provided all theories of guilt available to the jury are supported by sufficient evidence.
The jury initially returned verdicts finding Paulley and Gunn guilty of all homicide and burglary charges—both principal and every lesser-included offense. Specifically, as to the homicide, Gunn and Paulley were each found guilty of murder, manslaughter in the first degree, and manslaughter in the second degree; Paulley was additionally found guilty of facilitation to murder, facilitation to manslaughter in the first degree, and facilitation to manslaughter in the second degree. As to burglary, Gunn and Paulley were each
On appeal, Gunn and Paulley contend they were entitled to a directed verdict on the greater offenses or a mistrial. Obviously, this unique factual scenario is highly unlikely to recur on remand. And we are highly skeptical that a mistrial was warranted. However, we need not definitively determine whether Paulley and Gunn were entitled to such a drastic curative measure because their cases are already being remanded to the trial court on other grounds. Nevertheless, we shall briefly discuss the directed verdict argument since Gunn and Paulley would not be eligible to be retried on the principal offenses of murder and robbery if we accept their argument that the jury's finding of guilt on the lesser-included offenses entitled them to a directed verdict on the principal offenses.
We have already held there was sufficient evidence to submit the principal burglary and murder charges to the jury. Moreover, the jury's highly unusual verdicts cannot be deemed an acquittal—implied or actual—of any principal charges since the jury also expressly found Paulley and Gunn guilty of the principal offenses. So the doctrine of implied acquittal provides no relief to either Gunn or Paulley since there were no acquittals.
Our precedent is clear that "[a] defendant may not be charged and convicted of both a major offense and lesser-included offense arising out of the same facts."
Both Paulley and Gunn contend the trial court erred by ordering them to be tried together, along with co-defendant Taylor. Their arguments focus mostly on the purported unfairness of having Taylor, who had already struck a deal with the Commonwealth at the time of trial, being permitted to sit at the defense table and being afforded the opportunity to collaborate upon such matters as peremptory strikes. But Taylor was, in Paulley's words, "inexplicably acquitted" by the jury. So there appears to be no possibility that Taylor will again stand trial with Gunn and Paulley on remand. In other words, any issues involving the purported prejudice Gunn and Paulley suffered as a result of being jointly tried with Taylor are moot. Instead, our focus must be on whether the trial court erred by trying Paulley and Gunn together, i.e., whether they may be again tried together on remand.
The main argument made by Paulley and Gunn is, essentially, that a joint trial was prejudicial to each of them because they had antagonistic defenses. "A criminal defendant is not entitled to severance unless there is a positive showing prior to trial that joinder would be unduly prejudicial."
We reject Gunn's specious argument that there was no evidence against him and that he must have been, essentially, found guilty by association or because he was framed by his co-defendants. This is merely a clever attempted variation on his previously rejected argument that he was entitled to a directed verdict. We have already held there was sufficient evidence to submit the charges to the jury, and it was up to the jury to sift through the evidence to determine what it believed and what it rejected. The facts and circumstances underlying the charges against both Gunn and Paulley were the same; and, taking into account all the facts and circumstances of these cases, we conclude the trial court did not abuse its discretion by ordering Gunn and Paulley be tried
The final issue we must discuss is raised by Gunn alone. Gunn contends the trial court erred by excluding on hearsay grounds a statement purportedly made by Paulley that Ward fired the fatal shot. We disagree with the argument that the trial court erred.
Megan Sanders was an acquaintance of Paulley and, along with others, spent time with Paulley in a park shortly after Brown was killed. When called as a witness by the Commonwealth, Sanders began to relate her version of the events on the night in question. During the early portions of Sanders's testimony, the Commonwealth requested a bench conference at which the Commonwealth stated it believed that Sanders would shortly testify that Paulley had told Sanders that Ward had fired the shot that killed Brown. The Commonwealth stated that such a statement was inadmissible hearsay; Gunn's counsel stated that the statement should be admitted as a statement against interest. The trial court ruled the Commonwealth was not required to introduce any statements in its own case that it did not wish to introduce. The trial court then stated it believed the statement would be inadmissible hearsay if defense counsel sought to introduce it on cross-examination. When Gunn later sought to question Sanders about Paulley's alleged statement about Ward having been the shooter, the trial court ruled the statement inadmissible.
All parties seem to agree the statement —whatever its precise content would have been—would have been hearsay. And hearsay is not admissible, unless it fits within an exception to the hearsay rule.
Gunn argues two main exceptions to the hearsay rule. Neither is persuasive.
First, Gunn argues that the statement should have been deemed admissible under the holding of Chambers v. Mississippi.
Plainly, Chambers is distinguishable from the case at hand. Chambers was concerned with a situation in which a defendant could not impeach his own witness and whether that inability deprived a defendant of a right to defend himself—a concern not present in the case at hand. Equally important, the statement at issue in Chambers was self-incriminating; Paulley's alleged statement at issue in the present case directly incriminated Ward and only indirectly incriminated Paulley by, at most, merely placing Paulley at the scene of the shooting. So we do not believe that Chambers applies, nor that our longstanding rules deeming hearsay inadmissible are, in this case, being "applied mechanistically to defeat the ends of justice."
Gunn's second argument in favor of the statement's admissibility is even less meritorious. Gunn contends that the statement was admissible as the statement of a party-opponent.
For the foregoing reasons, Steven Paulley's and Henny Gunn's convictions are vacated; and their cases are remanded to the trial court for proceedings consistent with this opinion.
All sitting. ABRAMSON, NOBLE, and SCOTT, JJ., concur. VENTERS, J., concurs, in part, and dissents, in part, by separate opinion in which CUNNINGHAM and SCHRODER, JJ., join.
VENTERS, J., concurring, in part, and dissenting, in part:
While I otherwise agree with the sound rationale expressed by the Chief Justice in the majority opinion, I must part company with my colleagues regarding the burglary convictions. Appellants Paulley and Gunn should have been granted a directed verdict dismissing the burglary charges because the evidence presented, when viewed most favorably to the Commonwealth, failed to prove the essential element of entry into the residence.
Here, there is no evidence of entry. There is only an inference of slight entry. As stated in the majority opinion: "The evidence showed that,
There was no doubt whatsoever that Gunn kicked the door in an unsuccessful attempt to gain entry. If that constitutes burglary, what then constitutes an attempted burglary? Stepping onto the porch? Knocking on the door?
Given the evil deeds of Gunn and Paulley and the multiple sentences imposed upon them for crimes that were properly supported by sufficient evidence, one might be tempted to regard this issue as having no real consequences. The burglary sentences are totally subsumed by the life sentences imposed for the murder of Rocky Brown. But the majority's holding that this evidence is sufficient to support a burglary conviction will henceforth govern when a burglary conviction matters mightily. We must not forget that this was a capital murder case in which the burglary charge was an essential aggravating factor for the imposition of a death penalty. This holding will also revisit us with the most distasteful consequences when the scant inference of slight entry converts a hard knock on a door into a Persistent Felony Offender (PFO) sentence of twenty-plus years; or when we see a young man, who should have been convicted for harassment or attempted burglary, become a felon because he pounded too hard on a door before giving up and going home.
For the reason set forth above, I would reverse the burglary convictions. I respectfully concur, in part, and dissent, in part, with the majority opinion.
CUNNINGHAM and SCHRODER, JJ., join.
