Anderson v. Commonwealth, No. 2008-CA-000268-MR (Ky. App. 1/9/2009)
| Decision Date | 09 January 2009 |
| Docket Number | No. 2008-CA-000268-MR.,2008-CA-000268-MR. |
| Parties | Darrell B. ANDERSON, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Jamesa J. Drake, Frankfort, Kentucky, Briefs for Appellant.
Jack Conway, Attorney General of Kentucky, Heather M. Fryman, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: LAMBERT and VANMETER, Judges; KNOPF,1 Senior Judge.
NOT TO BE PUBLISHED
Darrell Anderson appeals from a judgment of the Monroe Circuit Court convicting him of second-degree arson and sentencing him to a ten-year term of imprisonment. He argues that the trial court improperly questioned a witness, thereby assisting the Commonwealth in proving venue, and improperly declared a witness to be an expert in the presence of the jury. For the reasons stated below, we affirm.
On the night of March 1, 2003, Darrell Anderson attended an auction at the Old Jeffery Store located on Bethlehem Church Road in Jeffery, Monroe County, Kentucky. At approximately 8:00 p.m. police responded to a complaint that Anderson was intoxicated and disruptive. Officer Darryl Ford arrested Anderson and transported him to the police station. During the drive Anderson repeatedly stated he was going back to the Old Jeffery Store "to see why they had him arrested." Anderson was detained at the station for a four-hour period and then released. At about 7:00 a.m. the next morning, the Old Jeffery Store was set on fire and burned to the ground.
Investigators determined that the fire had been deliberately started by use of an accelerant. A Commonwealth's witness, Evertt Key, who lived directly across the road from the store,2 testified that he had seen Anderson, with whom he was acquainted, drive up to the store, remove a two-gallon gas can from his vehicle, pour the contents from the can onto the porch of the structure, and set the fire. He then observed Anderson enter his vehicle and leave. Key was absolutely sure that the person he saw set the fire was Anderson.
On June 21, 2006, the Monroe County Grand Jury indicted Anderson on the charge of second-degree arson, KRS3 513.030. A jury trial was held on November 8, 2007, following which the jury returned a verdict of guilty. The jury recommended a sentence of ten years' imprisonment. Anderson's post-trial motion for judgment of not guilty notwithstanding the verdict or, in the alternative, motion for a new trial was denied. On December 19, 2007, the trial court entered a final judgment and sentence consistent with the jury's verdict. This appeal followed.
Anderson contends that the trial court "erred by assuming the role of the prosecutor and questioning a witness about an element of the crime the Commonwealth failed to establish." More specifically, he argues that the trial court improperly questioned a witness concerning the location of the arson. The question established an element of the crime that up to that point in the trial the Commonwealth had failed to prove—that the crime occurred in Monroe County. Anderson concedes that this issue is not preserved, but requests review for palpable error under RCr4 10.26.
The incident to which Anderson refers occurred at the conclusion of the direct examination by the Commonwealth of its second to last witness. At that time, the following exchange occurred:
There can be no dispute that the burden to prove proper venue rests on the Commonwealth. KRS 452.510 provides as follows:
452.510 Criminal prosecutions
Unless otherwise provided by law, the venue of criminal prosecutions and penal actions is in the county or city in which the offense was committed.
In Commonwealth v. Cheeks, 698 S.W.2d 832 (Ky. 1985), the Supreme Court of Kentucky summarized the authorities and rules requiring that the Commonwealth establish that the crime was committed in the county in which the defendant is being tried:
The circuit courts of this state are never without "jurisdiction" to preside over the prosecution of offenses committed in Kentucky; rather, KRS 452.510 stipulates that "venue" is improper in the circuit court of a county other than that in which the offense has been committed. The purpose of mandating the prosecution of a case in the county in which the offense has been committed is to insure that the defendant is tried by an impartial jury from the vicinity in which the offense has been committed. The Constitution of Kentucky, Section 11 reads in part:
". . . and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage. . . ."
According to Ballantine,5 vicinage is "the area surrounding a particular place, specifically the place where the cause of action is alleged to have arisen or where a crime is alleged to have been committed." Prosecution in the county in which the offense has been committed also insures that witnesses and evidence are more readily available to both the prosecutor and the defendant. "Venue" then is merely a statutory prescription that the prosecution be in the county in which the offense has been committed and that the prosecution is in a court which has "jurisdiction" to preside over the case, i.e. the circuit court of that county. The statutory prescription also requires proof by the prosecutor that the offense did in fact occur in the county in which the case is being prosecuted. It has generally been held in this state that it is not necessary to show direct evidence that the crime occurred in the county of its prosecution, but the fact may be inferred from evidence and circumstances which would allow the jury to infer where the crime was committed. See Gilley v. Commonwealth, 280 Ky. 306, 133 S.W.2d 67 (1939); Rounds v. Commonwealth, 282 Ky. 657, 139 S.W.2d 736 (1940); Vinson v. Commonwealth, Ky., 248 S.W.2d 430 (1952); Byrd v. Commonwealth, Ky., 283 S.W.2d 191 (1955); Woosley v. Commonwealth, Ky., 293 S.W.2d 625 (1956).
Thus if venue is not established at all, the conviction may not stand. Lunce v. Commonwealth, 289 Ky. 706, 160 S.W.2d 3 (1942). If, however, there is sufficient evidence appearing in the record to identify the crime occurred in the county of trial, reversal is not required. Hale v. Commonwealth, 269 Ky. 743, 108 S.W.2d 716 (1937), certiorari granted 303 U.S. 629, 58 S.Ct. 523, 82 L.Ed. 1089 (1938), reversed on other grounds 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938).
We next consider the circumstances under which the trial court may properly question witnesses. A trial court may question witnesses. KRE6 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Terry v. Commonwealth, 153 S.W.3d 794 (Ky. 2005), provides a comprehensive discussion of the rule:
The drafters' Commentary [to KRS 614] points out that the rule merely "adopts well-established principles concerning judicial participation in the production of evidence," noting that "[b]ecause of the risk that judicial participation in the production of evidence might unduly influence the triers of fact, it is expected that courts will use this power sparingly and always with sensitivity to the potential for unfairness to the litigants." KRE 614(b), Drafters' Commentary (1989). From this, we conclude that the rule was intended to codify existing case law on the subject. Pre-rule cases emphasized that this is "not a practice to be encouraged for it is likely to lead the court into error, for it may indicate the views of the court upon the question of guilt or innocence of the defendant." Fyffe v. Commonwealth, 256 Ky. 145, 75 S.W.2d 778, 780 (1934).
He may properly ask questions of a witness in order to expedite the orderly procedures of the trial. . . . But, in asking questions in the presence of the jury while the issues still hang in the balance, he should not allow his personal opinions to "leak into the crucible." . . . The trial judge's observations and comments usually carry such weight with the jury that they must be subject to safeguards against abuse.
Davidson v. Commonwealth, 394 S.W.2d 911, 912 (Ky. 1965) (internal citations omitted). Specifically, the trial judge cannot "by the form of his question or his manner indicate to the jury his opinion as to the credibility of the witness being interrogated or the guilt or innocence of the accused." Caudill v. Commonwealth, 293 Ky. 674, 170 S.W.2d 9, 10 (1943). And a judge should not express his opinion about the veracity of a witness through the nature of his questioning, especially through leading questions. Collins v. Com., 297 S.W.2d 54, 56 (Ky. 1957). Of course, a trial judge cannot ask questions that place him "in the role of a prosecutor rather than an arbiter." LeGrande v. Commonwealth, 494 S.W.2d 726, 731 (Ky. 1973).
A trial judge should never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the Government. . . . In our system of administering justice the functions of the trial judge and the prosecuting attorney are separate and distinct; they must not be confused. The trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution.
United States v. Sheldon, 544 F.2d 213, 218 (5th Cir. 1976) (internal citations and quotations omitted). Federal courts have identified three factors that determine whether a trial judge has good reason to inject him/herself into the trial.
First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case...
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