Opinion of the Court by Justice KELLER.
Adrian Boyd (Boyd) appeals as a matter of right from a judgment of the Hart Circuit Court convicting him of burglary in
As grounds for relief Boyd contends that the trial court erred by: (1) refusing to dismiss the entire jury venire after prejudicial statements by a prospective juror; (2) allowing the narration of security footage by witnesses; (3) allowing testimony by a police officer mentioning Boyd's previous arrest; (4) allowing inadmissible, speculative hearsay regarding Boyd; and (5) improperly finding Boyd to be a persistent felony offender in the first degree.
For the reasons stated below, we affirm.
Dwight Faulkner (Faulkner) resides in a single-family home in Horse Cave, Kentucky. Several years ago, Faulkner installed motion-activated security cameras inside and outside his home, when his father, who suffered from Alzheimer's disease, was living with him. After his father moved, Faulkner continued to operate the security cameras.
On May 3, 2012, Faulkner and Brandi Richardson (Richardson) were cleaning Faulkner's home. LaShauna Wells (Wells), an acquaintance of Faulkner's, arrived at Faulkner's home and left the door open. Shortly thereafter, two men followed Wells inside and assaulted Faulkner. Faulkner reported the assault to the Hart County Sheriff's Office several hours later. Ultimately, Boyd and Demarcus Clayton (Clayton) were arrested and charged with assault and burglary. Wells was also arrested and charged with complicity to both assault and burglary.
Boyd and Wells were tried together and, as noted above, the jury convicted Boyd of burglary in the first degree, assault in the fourth degree, and for being a persistent felony offender in the first degree. The jury convicted Wells of complicity to burglary in the first degree and complicity to assault in the second degree.
We set forth additional facts as necessary below.
Boyd raises several issues, both preserved and unpreserved. The standard of review for preserved evidentiary errors is abuse of discretion. Abuse of discretion occurs when the trial court's decision in allowing or disallowing the introduction of evidence was arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999); (citing 5 Am. Jur.2d Appellate Review § 695 (1995)). Additionally, preserved errors can be reviewed under the harmless error standard. "A non-constitutional evidentiary error may be deemed harmless ... if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error." Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
We review unpreserved errors for palpable error. RCr 10.26. Palpable error affects the substantial rights of the party and results in manifest injustice. Furthermore, an appellant claiming palpable error must show that the error was more likely than ordinary error to have
We set forth any additional standards of review as necessary below.
During voir dire, a prospective juror, Mr. N
Amid laughter from the rest of the venire, Wells moved to strike the juror for cause and Boyd moved to excuse the entire venire. The judge declined to dismiss the entire venire, but called Mr. N to the bench, and asked him several questions. The judge then dismissed Mr. N and admonished the rest of the venire thusly:
The judge then asked if Mr. N's answer affected any of the jurors; no jurors indicated that it had.
Boyd contends that this outburst should have prompted the judge to dismiss the entire venire instead of issuing an admonition. We disagree.
The trial court has broad discretion in determining whether a jury venire should be dismissed, and its ruling should not be disturbed absent a clear abuse of discretion. Thompson v. Commonwealth, 862 S.W.2d 871, 874 (Ky.1993). Furthermore, proper admonitions are presumed to be a legally sufficient remedy, and absent a showing of actual prejudice, there is a presumption that the jury follows such an admonition. Maxie v. Commonwealth, 82 S.W.3d 860 (Ky.2002) (Citing Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), overruled on other grounds in Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997)).
The judge in this case not only admonished the venire not to consider Mr. N's statements immediately after his outburst, but also asked the jurors whether the outburst affected them. Furthermore, the judge similarly admonished the final jury panel. There is nothing to suggest the admonition was ineffective or to suggest the judge acted in an arbitrary or unreasonable manner. Therefore, we cannot say the judge abused his discretion.
The night of the assault, Faulkner invited Richardson to clean his house. Richardson arrived at approximately 1 a.m. At 3 a.m., Richardson was folding clothing in the sitting room, where the monitors for Faulkner's security cameras were located. Wells arrived at the house, and Faulkner answered the door. During this time, Richardson noticed two men "skulking around" outside the house. When Richardson saw the men enter the house, she ran upstairs and hid. After the men entered
During trial, both Faulkner and Richardson testified to the existence of the security footage. They then narrated the footage for the jury. Richardson identified the two assailants and narrated the events she witnessed in real time, and those that took place after she had run for cover. Faulkner narrated footage from before he was aware of the intruders and after he had been knocked unconscious.
Boyd alleges three errors in regard to the narration: first, that any narration by Faulkner and Richardson is improper; second, that the specific narration about events that Faulkner and Richardson did not see in real time was improper; and third, that the identification of the assailants by Richardson was improper. The narration and identification are separate issues and we address them independently. The objection to Richardson's testimony is preserved; however, the objection to Faulkner's testimony is not. Therefore, we examine Richardson's testimony under the abuse of discretion standard and Faulkner's testimony under the palpable error standard.
In Morgan v. Commonwealth, 421 S.W.3d 388 (Ky.2014), this court held that Kentucky Rules of Evidence (KRE) 602 and 701 govern the admissibility of narrative testimony. KRE 602 limits testimony to matters within the personal knowledge of the witness, while KRE 701 further limits testimony by a lay witness to matters, "a) rationally based on the perception of the witness; [and] b) helpful to a clear understanding of the witnesses' testimony or demonstration of a fact in issue." Accordingly, narration of a video may be proper but only if it is comprised of opinions and inferences that are rationally based on the witnesses' own perceptions of which he had personal knowledge and that are helpful to the jury. Furthermore, witnesses are limited to a description of events when narrating video footage and any interpretation of that footage is improper. Cuzick v. Commonwealth, 276 S.W.3d 260, 265-66 (Ky.2009).
We established in Morgan that narration of video footage is permissible under certain circumstances, and improper when the witnesses interpret the footage or offer an opinion. Morgan, 421 S.W.3d at 388. Faulkner and Richardson did not interpret the footage, nor did they offer their opinion on the subject. Faulkner and Richardson merely narrated the events as they occurred and did not testify to anything that the jury could not see for themselves. Thus, the trial court did not commit error in allowing narrative testimony regarding events perceived in real time by Faulkner and Richardson.
However, Faulkner and Richardson both testified to events that they
In Morgan, we held that witnesses are permitted to make identifications through video evidence. Morgan, 421 S.W.3d at 392. KRE 602 and 701 permit identifications from photographs and videos, particularly when the witness is in a position to make an identification based on personal knowledge that is not available to the jury. Id. See also United States v. White, 639 F.3d 331, 336 (7th Cir.2011) (holding that a lay witness can testify regarding the identity of a person depicted in a photograph from a surveillance video "if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury").
Richardson testified that she was familiar with both Boyd, who is her ex-boyfriend, and Clayton, who is Boyd's cousin, thus she had personal knowledge of the individuals that she was identifying. She also testified that she knew the assailant was Boyd because of the way he stood and by what jacket he was wearing. This put her in a unique position to identify Boyd, which was helpful to the jurors who did not possess such knowledge of the assailants. Thus, because Richardson's identification of the assailants as Boyd and Clayton was permissible under KRE 602 and KRE 701, there was no error.
After Wells left Faulkner's house, she crashed her SUV. Wells and her children, who were in the car at the time, suffered minor injuries and a passerby drove them to the hospital. Officer Webb, an officer with the Horse Cave Police Department, responded to Wells's crash scene. While at the crash scene, Boyd and an unidentified man approached Officer Webb. Boyd indicated that the car was Wells's and that his children were inside. When Officer Webb told him that no one was found in the car, Boyd replied that he must have been mistaken and left the scene.
During trial, the Commonwealth's attorney asked Officer Webb if he was familiar with Boyd before the accident. Officer Webb responded; "Yes, I was familiar with him, I had arrested him." The Commonwealth's attorney interrupted Officer Webb before he could finish the sentence, and Wells's attorney asked the court for an admonition. The Commonwealth's attorney responded that he wasn't sure the jury had heard the statement. Wells's attorney agreed that drawing more attention to the matter might be unadvisable, and she withdrew her motion. Thus, the court did not give an admonition, and the trial continued.
Boyd contends that this testimony was: in violation of KRE 404(b); unduly prejudicial as evidence of a prior bad act; and requires reversal of his conviction. The Commonwealth argues that this issue is not preserved because of Boyd's failure to ask for an admonition. We agree with the Commonwealth.
The cure for accidental admission of prior bad acts is an admonition to the jury to disregard the testimony.
Boyd withdrew his request for an admonition as a strategic move to keep from highlighting the evidence to the jury. As stated in Lanham, we do not review an alleged error when an admonition is a sufficient cure, and the defendant, as herein, fails to request one.
The night of the assault, Wells called Faulkner's cell phone, asking to come over to his house.
To the extent that we understand this argument, Boyd contends that the testimony was speculative and admitted in violation of KRE 701. The objection as to speculation is preserved, and examined for abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). While we agree that the initial testimony was speculation and could have been stricken from the record, as set for below, any error was harmless for three reasons.
First, after Boyd's objection based on speculation, the Commonwealth "clarified" the question. Faulkner reiterated his testimony that the cell phone belonged to Boyd. Boyd did not object to this testimony, which contained hearsay, and has not asked us to review it on that ground. Therefore, Boyd waived his objection to its admission.
Second, Boyd contends that the testimony was speculative and in violation of KRE 701. KRE 701, as previously stated, prohibits witnesses from testifying to matters not within their personal knowledge. Faulkner had previously testified that he did not recognize the number of the phone from which Wells called. The subsequent testimony that the phone belonged to Boyd was outside of his personal knowledge, thus speculative and in violation of KRE 701. However, this evidence was then admitted through other means, specifically, Faulkner's testimony after Boyd's objection. Boyd did not object to the admission of the testimony, thus, as stated above, he waived any objection to its admission.
Third, Boyd objects to the testimony because Wells's use of his cell phone implied he had a relationship with Wells. However, there was no attempt by either Boyd or Wells to keep their relationship a secret. Wells, Faulkner, and Richardson all testified that Boyd and Wells had children in common, and that they had previously been in a romantic relationship. Wells further testified that Boyd was staying at her apartment the night of the
Boyd had, in pertinent part, been convicted of three felonies before the felony now on appeal.
The PFO statute, KRS 532.080, states that a defendant with two prior felony convictions may be found guilty of being a PFO in the first degree. KRS 532.080(2)(3). For the purpose of PFO offenses, any felonies in which sentences are to be served concurrently, or uninterrupted, are considered one felony. Id.
Boyd argues that because he served the time before he was granted shock probation on the Hart County and Barren County felonies in county jail, the time served should not be considered "imprisonment" as articulated in KRS 532.080. Boyd also contends that the preceding evidence supports a conviction of being a persistent felony offender in the second-degree only, because all of his prior convictions were "served concurrently."
Boyd first argues that because he served time for the Hart County and Barren
Boyd does not cite any authority suggesting that "prison" and "jail" are different for PFO purposes, nor can we find any authority supporting that conclusion. The definitions of jail, prison, and imprisonment all contain the phrase "to confine." Black's Law Dictionary, 851, 1232, 773 (8th ed.2004). Some individuals serve entire sentences in county jails, some in state prisons, and some in a combination of both. To suggest that the felonies of individuals who serve time in county jail do not count simply because they were not in the state penitentiary would be an absurd result. To hold that county jails are so inherently different so as to void any chance of PFO convictions would require a reworking of the PFO statute, or the Kentucky penal system, and would be a result unsupported by the purposes of the PFO statute. See Blades, 339 S.W.3d at 456 ("We will not subvert the rehabilitative purpose of KRS 532.080 as outlined by the Court of Appeals in Williams, [Williams v. Commonwealth, 639 S.W.2d 788 (Ky.App.1982) ], by interpreting the statute in an absurd manner which is necessary to sustain Appellant's argument.") The Commonwealth's goal in sentencing felons to imprisonment is to keep them out of society and to provide rehabilitation. Regardless of the way in which the Commonwealth achieves that goal, whether through incarceration in county jails or state penitentiaries, the intent is the same, to prevent the individuals convicted from committing additional crimes. We do not find any difference in serving time in county jails compared to state penitentiaries for the purposes of PFO convictions.
Boyd next contends that his convictions fit into the "concurrent sentence break" defined in KRS 532.080(4). We find Blades to be informative on the issue. In Blades, the appellant argues that he was denied due process because the Commonwealth failed to prove he was a first-degree PFO. Blades, 339 S.W.3d at 450. The appellant committed one felony, served time, and was released on parole. He then committed another felony. Id. We held that these two felonies do not count as concurrent specifically because there was a break in time between serving the sentence for each felony. Id. Blades clearly states, "`concurrent sentence break' does not apply to individuals who commit a felonious act, receive a sentence, and then subsequently commit another felonious act and receive another sentence." Blades, 339 S.W.3d at 456. Boyd committed a felonious act (Hart County and Barren County felonies), received a sentence (five years' imprisonment), was granted shock probation, and then subsequently committed another felonious act (Warren County felony) and received another sentence (one year imprisonment). Thus, the Barren County felony and the Hart County felony count as a single felony because Boyd served the time concurrently. However, Boyd committed the Warren County felony while he was out of jail on shock probation, thus there was a break in the time being served. Therefore, the Hart and Barren County felonies and the Warren County felony are properly considered
For the foregoing reasons, we hereby affirm Appellant's conviction and sentencing.
All sitting. All concur.
