Crabtree v. Commonwealth, 2012-SC-000330-MR
| Decision Date | 23 October 2014 |
| Docket Number | 2012-SC-000330-MR |
| Parties | RICHARD CRABTREE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
RICHARD CRABTREE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
2012-SC-000330-MR
Supreme Court of Kentucky
OCTOBER 23, 2014
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIOJM IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
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NOT TO BE PUBLISHED
ON APPEAL FROM CARTER CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
NO. 11-CR-00121-001
MEMORANDUM OPINION OF THE COURT
Richard Crabtree appeals as a matter of right from a Judgment of the Carter Circuit Court convicting him of burglary in the first degree and sentencing him, in accord with the jury's verdict, to a maximum term of twenty years in prison. Crabtree was found guilty of having invaded under aggravating circumstances the Grayson, Kentucky home of Robert Evans. On appeal, Crabtree maintains that the trial court's failure to conduct a Faretta [v. California, 422 U.S. 806 (1975)] hearing, testimony by one witness improperly bolstering that of others, improper closing argument by the prosecutor, and an unsupported jury instruction all, either singly or in conjunction, entitle him to a new trial. He also maintains that the trial court failed to give proper consideration to mitigating factors when it imposed what Crabtree characterizes as the jury's unduly harsh sentence. Convinced that Crabtree has not identified any ground for relief, we affirm the trial court's judgment.
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The Commonwealth's proof at trial tended to show that during the late night or early morning of July 6-7, 2011, Crabtree, accompanied by James Colley, forced his way at knifepoint into the home of Robert L. Evans on Kibby Street in Grayson. Staying with Evans that night were two of his sons, Raymond Sean Evans and Greg Evans; a grandson, Justin Lee Evans; and Justin's girlfriend, Stephanie Moore.1 All five of the home's occupants testified to the effect that Crabtree, whom none of them knew, accosted Raymond in front of the house as Raymond was getting into his car, threatened him with a largish knife, and demanded to be let into the home so that he could confront "Scooter," one Scotty Ludwig, concerning a drug transaction gone sour.
Once inside, Crabtree, still holding the knife, screamed that he would cut somebody if Scooter was not produced and proceeded to kick open the doors to the laundry room and a bathroom. While Raymond and Justin attempted to convince Crabtree that Scooter was not there, Moore ran to wake up Greg, and Evans slipped into his bedroom where he kept a loaded revolver. Having thus armed himself, Evans went to the kitchen, where by then Crabtree had arrived, pointed the gun at Crabtree, and ordered him to leave. When Crabtree refused, Evans fired a warning shot into the floor. Crabtree then reached for the gun and a struggle ensued. Raymond, Greg (who by that point had joined the fray), and Justin in fairly short order shoved and punched Crabtree out the back
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door. In the meantime, Colley, who had remained in the living room with Moore, ran out the front door. He met with Crabtree coming around the side of the house, and the pair then jumped into a car driven by a third participant, Brittany Lewis. The car sped off, and immediately both Raymond and Moore called 911 on their cell phones. The Evanses all denied that they sold drugs or that Crabtree had been at their house to buy them.
In the aftermath, it was found that Robert Evans had suffered a significant tear on his forearm, apparently from having scraped his arm against the door frame or the surrounding wall as Crabtree was being forced from the house. In addition to the police, therefore, emergency medical care was summoned, but when Evans refused to go to the hospital the EMS workers only bandaged his arm and left the scene. Meanwhile, police officers recognized from an earlier complaint the description of Crabtree and the vehicle in which he fled and so proceeded directly to Colley's residence in Willard, Kentucky, where they found and arrested both Crabtree and Colley. Crabtree told the arresting officer that he must have "lost" his knife. He declined otherwise to make a statement. Raymond and Moore were called to the Grayson police station, and there they identified Crabtree as the person who had invaded their home and threatened them.
Later that night Colley made a statement, and at trial, at Crabtree's behest and with his full concurrence, the Commonwealth played a recording of that statement for the jury. Colley told the officer that earlier that evening Crabtree had given "Scooter" money for pills, that "Scooter" had "ripped him
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off by not delivering the pills, that Brittany Lewis had suggested they look for "Scooter" at the Evans's residence, and that although he did not see Crabtree with a knife, he heard him threaten to "cut" Raymond if Raymond did not let him into the house. Colley stated that he stayed in the living room while Crabtree was trying to search the house and that when he heard the gunshot he ran out the front door.
Based on Colley's statement, the police arrested Lewis, and about three weeks later Crabtree, Colley, and Lewis were jointly indicted on a charge of first-degree burglary. Crabtree was also separately indicted on a charge of first-degree wanton endangerment for having struggled with Evans over the gun. The indictments against Crabtree were consolidated and tried together. At Crabtree's trial, Lewis testified for the Commonwealth. She too stated that Crabtree had been "ripped off by "Scooter," but in her version it was Colley and his girlfriend who had suggested that "Scooter" could be found at Evans's residence. Lewis testified that she did not see Crabtree with a knife at any time, either before or after the incident. Crabtree called Colley to testify, but aside from acknowledging that he had given a statement to the investigating officer, he invoked his Fifth Amendment privilege not to testify against himself.
Crabtree testified that he had gone to the house on Kibby Street, not in search of Scotty ("Scooter") Ludwig, whom he did not know, but to buy pills, Lewis and Colley's girlfriend having told him that the Evanses dealt in that commodity. He had been allowed into the house for that purpose, he claimed, and had given someone $250 expecting seven pills (Percocets) and $5 change in
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return. When several minutes passed and the person did not return with the pills, Crabtree became upset and began demanding either his drugs or his money. His attempt to follow the person into the back part of the house was blocked by two other persons, and while he was arguing with them Evans had approached, pointed a gun at him, and fired a shot. Crabtree claimed to have then grabbed the barrel of the gun so as to point it away from himself, and while holding the gun down to have backed his way to the kitchen door, from which he ran to the car. At no point, Crabtree insisted, had he threatened anyone with a knife or kicked open any door. Crabtree also called both Scotty Ludwig, who testified that he did not know Crabtree and had never had anything to do with him, and his, Crabtree's, sister, who testified that on a number of occasions she had taken pills supplied by the Evanses (known, she claimed, as the "pillbillies") and had witnessed pill transactions at their residence.
The jury acquitted Crabtree of wanton endangerment, but found him guilty, as noted, of first-degree burglary. Crabtree contends that the finding of guilt was based on a jury instruction at odds with his constitutional right to a unanimous verdict. We begin with this contention.
I. Crabtree Was Not Denied A Unanimous Verdict.
As Crabtree correctly notes, an aspect of a criminal defendant's right to a jury trial, as guaranteed by Section 7 of the Kentucky Constitution, is that "one may not be deprived of his life or liberty unless twelve of his peers believe him
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guilty of a specific crime beyond a reasonable doubt." Cannon v. Commonwealth, 291 Ky. 50, 51, 163 S.W.2d 15 (1942). Not infrequently, of course, the General Assembly provides that a specific crime may be committed in more than one way. This Court has long held that when that is the case a jury instruction combining more than one theory of the offense does not run afoul of Section 7's unanimity requirement provided that each theory included in the instruction is supported by the evidence. Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978). This is so, we have...
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