Kerr v. Commonwealth, 2011-CA-000351-MR
| Decision Date | 27 January 2012 |
| Docket Number | NO. 2011-CA-000351-MR,ACTION NO. 09-CR-002052,2011-CA-000351-MR |
| Parties | DANIEL KERR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
On July 14, 2009, the Jefferson County grand jury indicted Kerr on one count of second-degree robbery that arose from an incident on May 31, 2009, when he used physical force in the course of the robbery of David Norris, a Pizza Hut deliveryman. The matter proceeded to a trial by jury on November 3 and 4, 2010. Kerr's theory of the case was mistaken identity.
At the trial, Mr. Norris testified to the events of the early morning hours of May 31, 2009, when he was delivering pizza to 5502 Del Maria Way in Louisville.1 As he approached the common area of the apartment complex, he saw a group of people who told him they had ordered the pizza. He read the order out and told them the price. At that point, he was asked if he had change for a $100.00 bill. Mr. Norris reached into his pocket, but did not remove any money because he felt that something was not right. The men then demanded that he give them his money. Kerr grabbed Mr. Norris and held him against the brick wall of the apartment building. He was hit on his head, and Kerr ripped the cash he had out of his pocket. Seventy-three dollars in cash fell to the ground, and Kerr picked it up. Kerr then let Mr. Norris leave. As Mr. Norris walked away, he was hit on the back of his head and he began running to his car. He did turn around to retrieve his Pizza Hut visor. Mr. Norris returned to Pizza Hut, reported the incident, and called the police department to report the crime. He gave his statement to a police officer. A few days later, Detective Joshua Hash of the Louisville Metro 6th Division contacted him and asked him to look at several photo-paks. Mr. Norriswas able to identify Kerr as the person who grabbed him, held him against the brick wall, and took his money. Mr. Norris stated that despite it being dark at the time of the robbery, he was able to see Kerr's face clearly because he was very close to his face and the light in the common area above his head provided illumination. While he was able to positively identify Kerr, he was not able to positively identify any of the other participants in the crime.
Detective Hash testified that he was assigned to investigate the robbery. Mr. Norris had reported being attacked by three black males in their 20's. Detective Hash identified Kerr, among others, as a possible suspect and put together a photo-pak pursuant to department policies. Detective Hash went to Mr. Norris' residence on June 5, 2009, to show him the photo-paks, noting that the persons who attacked him may or may not be in the photo-paks. Mr. Norris positively picked out Kerr from one of the photo-paks. Once he made the identification, Detective Hash had probable cause and charged Kerr with the crime. On cross-examination, Detective Hash explained the procedure he used to put together the photo-paks that he presented to Mr. Norris.
Once the Commonwealth closed its case, Kerr moved for a directed verdict based upon lack of evidence. The Commonwealth objected, and the trial court denied the motion based upon the eyewitness identification that would permit a reasonable jury to determine that Kerr was guilty beyond a reasonable doubt. The parties then discussed the jury instructions with the court, and Kerr requested the inclusion of lesser-included offenses. The court denied this request because itcould not identify any basis for lesser-included offenses as the evidence stood, but indicated it would permit Kerr to reargue the issue if he testified during his case-in-chief and presented such evidence. Kerr did not object to any other aspect of the jury instructions other than a few typographical errors in numbering. After a recess, Kerr informed the court that he opted not to testify and did not call any witnesses. Kerr then renewed his motion for a directed verdict, which was again denied.
At the conclusion of the trial, the jury convicted Kerr of second-degree robbery as he was charged in the indictment. Following the penalty phase, the jury recommended a sentence of six-and-one-half years' imprisonment. Kerr moved for a new trial or for a judgment notwithstanding the verdict, arguing that the trial court impermissibly struck a juror for cause on the Commonwealth's motion and denied his request to include any lesser-included offenses in the jury instructions. The trial court ultimately sentenced him in accordance with the jury's recommendation, effectively denying Kerr's post-trial motion. This appeal follows.
On appeal, Kerr presents three arguments: 1) that the trial court made improper comments to the jury at the beginning of the trial; 2) that the robbery instruction denied him a unanimous verdict by including a theory of guilt not supported by the evidence; and 3) that the trial court improperly struck a potential juror for cause. We note that the first and second arguments are not preserved for appellate review.
Kerr's first argument addresses explanatory comments the trial court made to the jury prior to the start of the trial. These comments came directly after the court swore in the jury and were meant to orient the jury about how the trial would proceed; in other words, a "roadmap" of the proceedings. Kerr contends that these comments invaded the jury's exclusive right to judge the facts. Both Kerr and the Commonwealth in their respective briefs provided the historical background addressing this issue of law. In his reply brief, Kerr requested that this matter be decided as either a matter of constitution law under § 7 of the Kentucky Constitution or under common law.
After Kerr filed his reply brief, the Supreme Court of Kentucky issued the opinion of Walker v. Commonwealth, 349 S.W.3d 307 (Ky. 2011), which became final on October 13, 2011. This case is the subject of Kerr's motion for leave to file and notice of binding authority, which this Court has granted. We have reviewed this recent opinion and note that the trial judge in Walker is the same trial judge in the present case and that virtually identical comments were made in each case. Furthermore, the issue was not preserved in either case. Accordingly, we hold that the Supreme Court's holding in Walker is determinative as to this issue, and we shall set forth the applicable portion of the opinion below:
Walker also contends that his trial was rendered unfair by comments the trial court made to the jury immediately prior to the attorneys' opening statements. Having sworn in the jury, the trial court sought to orient it by providing what the court styled a "roadmap" of the proceedings. The court briefly described the phases of the trial and the roles of the participants. In explaining
the jury's role as the finder of fact, the court noted that the jury was the sole arbiter of the weight to be given the various pieces of evidence and the sole judge of the various witnesses' credibility. The court then advised the jury that a witness's credibility might be assessed by considering such factors as the witness's interest or lack of interest in the outcome of the proceeding, the clarity of the witness's recollection, the witness's demeanor, his or her opportunity for observation, and the overall reasonableness of the witness's testimony. Walker maintains that this latter advice purporting to tell the jury how to carry out its role amounted to a judicial invasion of the jury's province and thus undermined the integrity of his trial. Again, Walker did not preserve this issue by means of a timely objection, and so our review is limited under RCr 10.26 to asking whether the "how to" portion of the trial court's preamble was clearly improper, prejudiced Walker, and was so contrary to our ideal of fair and impartial proceedings as to be manifestly unjust. Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). Walker attempts to evade this strict standard by asserting that the trial court's error was of constitutional magnitude—a violation of sections 7 and 11 of the Kentucky Constitution—but even alleged constitutional errors, if unpreserved, are subject to palpable error review. Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). Since the alleged error here does not meet the palpable error standard, it does not entitle Walker to relief.
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