Hall v. Commonwealth of Kentucky
| Decision Date | 22 May 2003 |
| Docket Number | 2001-SC-0814-MR. |
| Parties | DONALD RAY HALL, Appellant. v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
A. B. Chandler III Attorney General of Kentucky, for appellee.
Matthew D. Nelson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY for Appellee.
Appellant, Donald Ray Hall, was convicted in Letcher Circuit Court of first-degree assault, first-degree burglary, first-degree stalking, first-degree wanton endangerment, kidnapping accompanied by serious physical injury, theft by unlawful taking and possession of a firearm. by a convicted felon. The convictions stem from Appellant's brutal attack upon Melissa Hall, his former wife. The jury recommended that each sentence run consecutively, whereupon the trial court fixed the total sentence at 80 years imprisonment. Appellant now appeals to this Court as a matter of right.
On the morning of June 18, 2000, an intruder alarm awakened Melissa Hall and her children. Arming herself with a handgun, she investigated the disturbance, only to discover Appellant entering through her kitchen door. Ms. Hall fired a warning shot in the air, but was soon overpowered by Appellant. Ms. Hall testified that a violent assault ensued, in which Appellant struck her repeatedly with her gun as he dragged her by the hair out of the house, ominously stating "we're going to the graveyard."
Ms. Hall's efforts to defend herself were unsuccessful, and at trial she related numerous details of the malicious battery inflicted upon her by Appellant as he forced her outside of the house and down a gravel road. The physical attack upon Ms. Hall concluded only after Appellant shot her in the leg as she lay collapsed on the ground. However, Appellant attempted to coerce Ms. Hall to further accompany him by placing the gun to the head of their five-year-old son, the child having unwittingly followed them outside. Appellant did not shoot, but instead left the scene, later turning himself in to the police.
Ms. Hall had, in fact, sought to prevent the violent encounter with her former spouse, with whom she maintained a stormy on-again, off-again relationship following their divorce. In early June 2000, the Letcher District Court entered an uncontested Domestic Violence Order (DVO) restricting Appellant's contact with Ms. Hall. The order required Appellant to remain at least 500 yards away from Ms. Hall at all times, and to vacate their shared residence. 'To further protect herself, Ms. Hall acquired a handgun, installed alarms on her doors, and nailed her windows shut.
Appellant claims he was denied due process and a fair trial because of two alleged incidents of prosecutorial misconduct. The first claim involves the prosecutor's statement during voir dire that he is "responsible for representing crime victims," specifically mentioning by name the victims in this case, Appellant's ex-wife and her son. The second allegation concerns the seating of Ms. Hall inside the bar at the prosecution counsel table, where she stayed throughout the guilt phase of the trial, except when testifying. Although no objection was made at trial to either matter, Appellant now asserts these actions improperly lent the credibility of the court and the Commonwealth to Ms. Hall's testimony and influenced the jury to base its decision on sympathy for the victim rather than on the evidence presented in court.
When prosecutorial misconduct is alleged, "the relevant inquiry on appeal should always center around the overall fairness of the trial, not the culpability of the prosecutor." Maxie v. Commonwealth, Ky., 82 S.W.3d 860, 866. A fair trial is not denied simply because a prosecutor states that he represents the victims of crime. Appellant correctly points out that a prosecutor "represents all of the people of the Commonwealth, including the defendant; he should in an honorable way use every power that he has, if convinced of a defendant's guilt, to secure his conviction, but should always remember he stands before the jury clad in the official raiment of the commonwealth, and should never become a partisan." Goff v. Commonwealth, 241 Ky. 428, 44 S.W.2d 306, 308. However, a statement by a prosecutor that he represents crime victims does not necessarily mean that he has abdicated his responsibility to represent all constituents within the Commonwealth, including the accused. Nor could such a statement alone be considered so inflammatory in nature as to cause a "jury to base its decision on guilt or innocence, or on the appropriate punishment, on who is victim." Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 542, citing Moore v. Zant, 722 F.2d 640, 651 (11 th Cir. 1984).
Appellant also argues that the seating of the victim at counsel table inflamed the passions of the jury, resulting in an unfair trial. Prior to voir dire, the trial judge ordered all witnesses sequestered outside of the courtroom. Ms. Hall remained behind, inside the rail with the prosecution, the trial record showing her seated directly adjacent to the jury box.
This Court addressed a similar situation in Brewster v. Commonwealth, Ky., 568 S.W.2d 232. In Brewster, a victim was permitted to sit at counsel table in order to "confer from time to time" with the Commonwealth's Attorney. Id. at 236. We noted that :
Generally, victims who are also witnesses may be excluded from the courtroom upon the motion of the court or a party. The complementary provisions of RCr 9.48 and KRE 615 govern the separation of witnesses, the latter rule stating:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential to the presentation of the party's case.
Therefore, according to the mandatory language of this rule, upon the request of a party the trial court must separate all witnesses unless one of the three enumerated exceptions applies. See Mills v. Commonwealth, Ky., 95 S.W.3d 838, 840-841; Justice v. Commonwealth, Ky., 987 S.W.2d 306, 315.
Prior to the adoption of the Kentucky Rules of Evidence in 1992, trial judges enjoyed discretionary authority to allow a witness familiar with the facts of the case to remain in the courtroom, despite a sequestration order, so that the witness could assist counsel during trial. See Brewster, supra, at 236; Robertson v. Commonwealth, 275 Ky. 8, 120 S.W.2d 680, 684; Johnson v. Clem, 82 Ky. 84, 87, 5 Ky. L. Rptr. 793, 795-796. KRE 615(3) codifies this earlier practice, allowing witnesses "shown by a party to be essential to the presentation of the party's case" to remain in the courtroom notwithstanding a sequestration order. See generally R. Lawson, The Kentucky Evidence Law Handbook, § 11.30, p. 631 (3rd ed. Michie 1993).
Appellant made no request to exclude witnesses, therefore it is unnecessary to determine if Ms. Hall's presence in the courtroom falls within the exception described in Brewster or articulated in KRE 615(3). Furthermore, Appellant does not contend that Ms. Hall adapted her testimony to conform to that of others, which application of the sequestration rules is designed to prohibit. See Mills, supra, at 840-841; Jacobs v. Commonwealth, Ky., 551 S.W.2d 223, 225. Finally, by not raising the issue at trial, Appellant cannot now complain that the prosecution and trial court erred by allowing the victim to sit at counsel table, particularly since this practice is permitted under the Kentucky Rules of Evidence and has been approved by prior decisions of this Court.
Appellant asserts that a statement by a potential juror tainted the entire panel, necessitating a mistrial. At the outset of voir dire, the prosecution asked if anyone recognized Appellant. One prospective juror, before the entire panel, said that he "might know him," adding "I used to be deputy jailer in Whitesburg." During the bench conference that immediately followed, out of the hearing of other panel members, the prospective juror revealed that Appellant was a former inmate at the jail. Appellant successfully challenged the potential juror for cause. The trial court, however, denied Appellant's motion for mistrial, offering instead to make a curative admonition, which Appellant declined.
Appellant contends the potential juror's remark labeled him as an individual with a criminal past. At trial, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." KRE 404(b). The United States Supreme Court, discussing the common-law tradition, provides some rationale for the rule : "[t]he inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." Michelson v. United States, 335 U.S. 469, 475-76, ...
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