Buchanan v. Commonwealth
| Decision Date | 12 June 2013 |
| Docket Number | No. 2011–CA–000639–MR.,2011–CA–000639–MR. |
| Citation | 399 S.W.3d 436 |
| Parties | Marc BUCHANAN, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
OPINION TEXT STARTS HERE
Thomas M. Ransdell (argued), Assistant Public Advocate, Frankfort, KY, for appellant.
Jack Conway, Attorney General of Kentucky and Julie Scott Jernigan (argued), Assistant Attorney General, Frankfort, KY, for appellee.
Before KELLER, TAYLOR and VANMETER, Judges.
Marc Buchanan (Buchanan) appeals from a judgment of the Fayette Circuit Court convicting him of first-degree assault, first-degree fleeing or evading police, and tampering with physical evidence and sentencing him to a total of fifteen years' imprisonment. For the following reasons, we affirm.
The following facts are not in dispute. On April 13, 2009, Luis Villanueva (Villanueva) got off work at 1:30 a.m. and went home to his apartment at the Matador Apartments. As he entered the apartment building, he saw two men. One of the men opened the door for Villanueva but kept his left hand in his coat pocket. Villanueva went up to his apartment, looked out his window, and saw the two men get into a car and back it into a parking spot by the dumpster. Because he was suspicious of the two men, Villanueva called 911.
Shortly after Villanueva called 911, Officer Nick Whitcomb (Officer Whitcomb) of the Lexington Metropolitan Police Department arrived at the Matador Apartments. Because Villanueva observed Officer Whitcomb drive past the vehicle with the two men in it, he called 911 again to give the officer the precise location of the men. After receiving that information from the dispatcher, Officer Whitcomb pulled his police cruiser in front of the vehicle with the two men in it and shined his spotlight into the car. Officer Whitcomb approached the vehicle and saw two men in the car with their seats reclined.
Officer Whitcomb ordered the passenger, who was later identified as Buchanan, to step out of the vehicle. After being questioned by Officer Whitcomb, Buchanan stated that he and the driver, Jesse Mayberry (Mayberry), had been asleep in the car. When Officer Whitcomb began to pat down Buchanan for weapons, Mayberry stepped out of the car and began to come around the vehicle. While Officer Whitcomb was instructing Mayberry to get back into the car, Buchanan pushed himself free from Officer Whitcomb and dove through the vehicle to the other side. Both Buchanan and Mayberry started to run away, and Officer Whitcomb chased them.
At some point, Buchanan and Mayberry ran in different directions, and Officer Whitcomb chased Buchanan into a field. During the pursuit, Buchanan pulled out a gun and shot it approximately three or four times. Because a bullet hit Officer Whitcomb in the right shoulder, he was unable to continue chasing Buchanan. Thus, Buchanan escaped.
The police waited until daylight to conduct a thorough search of the field where Officer Whitcomb was shot, and they found a revolver inside the doorway of a nearby building that was under construction. The bullet that was removed from Officer Whitcomb's shoulder was eventually identified as being fired from the revolver.
Buchanan was subsequently indicted for attempted murder, first-degree assault, first-degree fleeing or evading police, and possession of a handgun by a convicted felon. A second indictment charged Buchanan with tampering with physical evidence. Ultimately, the possession of a handgun by a convicted felon charge was severed after the trial court determined it could not be tried with the other charges. In exchange for his testimony against Buchanan, Mayberry entered into a plea agreement with the Commonwealth.
After a five-day trial, the jury returned a verdict finding Buchanan guilty of first-degree assault, first-degree fleeing or evading police, and tampering with physical evidence. Consistent with the jury's recommendation, the trial court sentenced Buchanan to fifteen years' imprisonment. This appeal followed.
Additional facts are set forth as necessary below.
The issues raised on appeal have differing standards of review. Therefore, we set forth the appropriate standard of review as we address each issue.
The jury deliberated for approximately six hours. As to the charge of first-degree assault, the trial judge announced that the verdict was not guilty. When the trial judge asked if either party wanted to examine the verdict, two jurors indicated that the verdict that was announced was incorrect. The trial judge then reexamined the verdict forms and asked the jurorsif the verdict announced was correct. As correctly noted by Buchanan, the jurors' response is unintelligible. The trial court then allowed the attorneys to look at the verdict form, and then asked the foreperson to approach the bench and look at the verdict to see if he filled it out correctly. The foreperson indicated that the verdict was incorrect and that the jury had found Buchanan guilty of first-degree assault.
The trial judge then told the jury that he was going to give them a red pen and send them back to the jury room to deliberate and to make sure the verdict forms reflected their intended verdict. Less than two minutes later, the jury returned with an amended verdict form finding Buchanan guilty of first-degree assault. The trial judge then polled the jury, and the jurors all indicated that the verdict was correct.
The trial judge noticed the jury had not marked through the original verdict finding Buchanan not guilty of first-degree assault. Therefore, in open court, the foreperson marked through the original verdict of not guilty. Later, the trial judge noticed that the foreperson had not initialed any of the changes he made to the verdict form; therefore, the trial judge asked the foreperson to initial the verdict form in open court.
Buchanan argues that it was improper to allow the jury to alter the verdict form. Because this claim is not preserved for appellate review, Buchanan asks this Court to review this claim for palpable error under Kentucky Rule(s) of Criminal Procedure (RCr) 10.26.
RCr 10.26 provides that:
A palpable error which affects the substantial rights of a party may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Because an improper alteration of a jury verdict certainly implicates manifest injustice, we examine the merits of the issue.
In support of his argument, Buchanan cites to Jackson v. Commonwealth, 303 Ky. 25, 27, 196 S.W.2d 865 (1946). In that case, the defendant was charged with breaking into a warehouse and faced a penalty ranging from one to five years' imprisonment. After a jury returned a verdict fixing the penalty at one year imprisonment,
the Commonwealth's Attorney stated in open court that unless the jury should give appellant the maximum he would set the verdict aside and call another jury to try the case; that he had other charges against appellant which he would file away if the jury should return a verdict of five years' imprisonment.... [T]he jury was ‘directed’ by the attorney and ‘permitted’ by the Court to return to their room and ‘reconsider their verdict.’ This they did, and made return as follows: ‘We the jury, after hearing other charges brought to our knowledge against the defendant by two Commonwealth's Attorneys, do reconsider our verdict and fix the penalty at five years in the penitentiary.’
Id. at 865. The Court determined that the trial court could not require the jury to reconsider its verdict, other than for the purpose of formal correction, after it had deliberated, returned, and read a verdict correct in form and substance. Id. at 866.
We believe that this case is distinguishable from Jackson because this jury was not directed to “reconsider” its verdict. In this case, the jurors realized there was a mistake in the verdict. After notifying the trial court of that mistake, the trial court permitted the jury to correct the mistake; it did not direct the jury to reconsider the verdict. Thus, we do not believe that Jackson is dispositive.
Instead, we believe this case is similar to Kaminski v. Bremner, Inc., 281 S.W.3d 298 (Ky.App.2009), and Bush v. Commonwealth, 839 S.W.2d 550 (Ky.1992). In Kaminski, as soon as the verdict form was handed to the judge, the foreman asked to see the verdict form again because he believed he checked the wrong section. Thus, in open court, the foreman altered the verdict form. The altered form reflected a verdict in favor of Bremner. The trial judge then polled the jury. Kaminski's counsel moved for a mistrial arguing the verdict form was irregular on its face because the foreman had changed the form in open court and two jurors appeared confused when asked how they voted. The trial court denied Kaminski's motion for a mistrial; however, it sent the jury back to resume its deliberations with a clean verdict form. 281 S.W.3d at 301–02.
The jury deliberated for approximately two minutes and again returned a verdict in favor of Bremner. The trial court polled the jury again, and the jurors confirmed their votes. Kaminski again moved for a mistrial, which the trial court denied. Id. at 303.
In concluding that the trial court did not err in denying Kaminski's motion for a mistrial, this Court noted that “altering a verdict form in open court is not automatic grounds for reversal and a new trial.” Id. at 304. This Court further concluded that, if it were to reverse and send the matter back for a new trial, it “might be permitting a possible distortion of the true verdict and in effect might be providing Kaminski a second day in court after the matter has been fully litigated and finally decided.” Id. at 305.
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