Kuhbander v. Commonwealth

Decision Date14 February 2019
Docket Number2018-SC-000131-MR
PartiesMOSES KUHBANDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtUnited States State Supreme Court — District of Kentucky

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM JESSAMINE CIRCUIT COURT

HONORABLE C. HUNTER DAUGHERTY, JUDGE

NO. 13-CR-00132

MEMORANDUM OPINION OF THE COURT
AFFIRMING

A Jessamine County jury convicted Moses Kuhbander of one count first-degree sexual abuse and being a first-degree persistent felony offender (PFO). Kuhbander was sentenced to twenty years' imprisonment. On direct appeal to this Court, we reversed and remanded for a new penalty phase because of the Commonwealth's improper statements to the jury. On remand, Kuhbander received a new penalty phase and was, again, given a sentence of twenty years in prison. He now appeals, arguing five points of error: (1) the jury was unduly prejudiced by the appearance of Kuhbander in shackles; (2) the jury was unduly prejudiced by the introduction of facts and circumstances of Kuhbander's prior convictions; (3) the trial court erred when it denied Kuhbander a hearing to determine whether a conflict existed with his defense counsel; (4) the Commonwealth committed prosecutorial misconduct by appealing to the jury's local or sectional prejudices; and (5) cumulative error. After careful review, we affirm the judgment and sentence.

I. BACKGROUND

This Court has previously reviewed the facts of Kuhbander's conviction in depth on his first direct appeal. See Kuhbander v. Commonwealth, No. 2015-SC-000149-MR, 2017 WL 1538524 (Ky. April 27, 2017). For the sake of brevity, we merely restate here that Kuhbander was convicted of the sexual abuse of his girlfriend's daughter, Sarah,1 during a weekend trip to Nicholasville, Kentucky. Id. at *1. As stated, we affirmed the conviction but remanded for a new sentencing due to prosecutorial misconduct during the original penalty phase.

Upon remand for a new sentencing, the Commonwealth introduced exhibits of Kuhbander's prior convictions as part of its case-in-chief. Kuhbander testified on his own behalf. The jury once again recommended the maximum sentence of ten years' imprisonment for the first-degree sexual abuse conviction, enhanced to the maximum of twenty years' imprisonment after the jury's finding that Kuhbander was a PFO in the first degree. Kuhbander appeals as a matter of right.

II. ANALYSIS
A. THERE WAS NO REVERSIBLE ERROR IN KUHBANDER BEING SHACKLED BEFORE THE JURY.

Prior to the beginning of the penalty retrial, counsel and the trial judge met in chambers to discuss several issues. Among these was whether Kuhbander was to be restrained during any of the trial. Defense counsel stated its request that Kuhbander remain unencumbered, especially since he planned on testifying before the jury. Rather than referring to specific reasons for shackling, the trial court referenced that it was common practice to restrain prisoners for sentencing. However, the judge called in one of the law enforcement officers from the courtroom to ask whether there was sufficient personnel in the courtroom to leave Kuhbander unrestrained. The officer stated that they did not plan to have any shackles or restraints on him. At that point, then, it seemed to be the agreement that Kuhbander was not to be restrained through the penalty phase.

At the beginning of the presentation of evidence, Kuhbander can be seen on the record walking back and forth to the bench without any restraints. Later that morning, after the court had recessed to discuss jury instructions, the parties returned for instructions to the jury and closing arguments. Before defense counsel presented his closing, the parties approached the bench. At that point, Kuhbander's ankles were shackled. It is unclear when exactly the restraints were placed on Kuhbander, or why the restraints were placed on him. Kuhbander joined the attorneys at that bench and requested that the shackles on him be removed. The court denied the request, again noting that during sentencing, prisoners are restrained. The trial court did not give any fact-specific reasons for the need for shackles in Kuhbander's case. Defense counsel noted an objection for the record, thereby preserving this allegation of error.

"Except for good cause shown the judge shall not permit the defendant to be seen by the jury in shackles or other devices for physical restraint." Kentucky Rule of Criminal Procedure (RCr) 8.28(5). This rule "bars the routine shackling of a defendant, absent a showing of good cause, whenever he will be seen by the jury." Barbour v. Commonwealth, 204 S.W.3d 606, 612 (Ky. 2006). "Thus, ... even though [Kuhbander] is challenging his shackling during the unique setting of a remanded PFO proceeding, we must still determine whether there was sufficient good cause in this case to justify shackling [Kuhbander] during the PFO proceeding." Id.

"Shackling of a defendant in a jury trial is allowed only in 'the presence of extraordinary circumstances."' Id. (quoting Peterson v. Commonwealth, 160 S.W.3d 730, 733 (Ky. 2005)). "[T]he use of shackles to restrain certain defendants has been necessary in cases where the trial court appears to have encountered some good grounds for believing such defendants might attempt to do violence or to escape during their trials." Commonwealth v. Conley, 959 S.W.2d 77, 78 (Ky. 1997). The decision to restrain a defendant "rests in the 'sound and reasonable discretion' of the trial judge." Id. (quoting Tunget v. Commonwealth, 198 S.W.2d 785 (Ky. 1947)). However, "[e]ach decision that involves the shackling of a defendant during trial must be given careful and thorough judicial scrutiny." Conley, 959 S.W.2d at 79. In Conley, this Court upheld a trial court's decision to restrain a defendant in shackles after his escape from the courtroom at his arraignment. Id. at 78. There, this Court determined that "the record demonstrate[d] that the trial judge carefully considered all the available alternatives ... [and] thoroughly examined and admonished prospective jurors regarding the presumption of innocence and its relationship to the restraints placed on Conley." Id. Thus, the Court found no abuse of discretion. Id.

In contrast, in Barbour, "the shackling of [Barbour] was not based on any specific finding that he was violent or a flight risk." Barbour, 204 S.W.3d at 613. Considering "the lack of any substantive evidence or finding by the trial court that [Barbour] was either violent or a flight risk, it is clear that the decision to require [Barbour] to appear at the PFO hearing in shackles was not justified." Id. at 614. Thus, the trial court's decision was an abuse of discretion. Id.

Like in Barbour, the trial court here made no substantive findings regarding the need for shackles. The court did not explain, other than the common practice, why Kuhbander needed to be restrained. There is no explanation in the record of any "good cause" for this decision. As such, we must hold that the decision was an abuse of discretion. However, this error is subject to harmless error review. Barbour, 204 S.W.3d at 614; see also Ordway v. Commonwealth, 2014-SC-000535-MR, 2016 WL 5245099, *16-18 (Ky. Sept. 22, 2016) ("The violation of RCr 8.28(5) is subject to harmless error analysis." (citation omitted)).

Barbour is instructive here as it too was a remanded PFO proceeding. There, the Court noted that "the PFO proceeding is essentially a status determination." Barbour, 204 S.W.3d at 615. Given the "overwhelming, unrebutted evidence that [Barbour] met the statutory requirements of being a PFO [second degree], [the Court] conclude[d] that the outcome would not have been different had [Barbour] appeared before the jury free of shackles." Id. at 616 (citing Lakin v. Stine, 431 F.3d 959, 966 (6th Cir. 2005)). Given the nature of a PFO proceeding, the Court stated that "it [was] unlikely that [Barbour]'s shackles contributed in any way to the jury's finding." Barbour, 204 S.W.3d at 616.

We hold that the error here was harmless beyond a reasonable doubt.2 Kuhbander had already been found guilty of sexual abuse in the first degree. The jury was given a long list of his fourteen prior convictions. He was argumentative from the witness stand, repeatedly stating that everyone was conspiring to prevent him from having a fair trial. Kuhbander was not shackled throughout the entire proceeding; it is unclear from the record exactly how long he was shackled and how often the jury saw him in those shackles. The potential for prejudice was slight. Given the overwhelming evidence of Kuhbander's criminal history, we have no hesitation in holding that the short appearance of him in ankle shackles did not affect the outcome of his penalty proceeding. Thus, we find no reversible error in the trial court's decision here.

B. THERE WAS NO PALPABLE ERROR IN THE SENTENCING EXHIBITS PRESENTED TO THE JURY.

In lieu of witnesses, the Commonwealth presented seventeen exhibits to the jury as its case-in-chief. It presented the Department of Corrections explanation of parole eligibility; fourteen separate certified convictions; the indictment in the underlying case; and the jury instructions and findings from the original trial, convicting Kuhbander of first-degree sexual abuse. The...

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