Lawson v. Com.

• Decision Date: 24 May 2001
• Docket Number: No. 1999-SC-0458-MR.,No. 1999-SC-0491-MR.,1999-SC-0458-MR.,1999-SC-0491-MR.
• Parties: Leslie Lee LAWSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Harold Sanford Brown, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 534

53 S.W.3d 534

Leslie Lee LAWSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Harold Sanford Brown, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 1999-SC-0458-MR.

No. 1999-SC-0491-MR.

Supreme Court of Kentucky.

May 24, 2001.

Rehearing Denied September 27, 2001.

As Amended October 12, 2001.

COPYRIGHT MATERIAL OMITTED

Richard Hoffman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant, Leslie Lee Lawson.

John Palombi, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant, Harold Sanford Brown.

A.B. Chandler, III, Attorney General, Brian T. Judy, Assistant Attorney General Criminal Appellate Division, Frankfort, Counsel for Appellee.

KELLER, Justice.

A Laurel County Circuit Court jury convicted Appellants, co-defendants in the trial court below, of second degree arson and second degree burglary and found Lawson to be a first degree persistent felony offender and Brown to be a second degree persistent felony offender. The jury recommended that each Appellant serve consecutive terms of sixty (60) years for the PFO-enhanced second degree arson conviction and twenty (20) years for the PFO-enhanced second degree burglary conviction. The trial court entered judgment in accordance with the jury's recommendation and sentenced each Appellant to serve a total term of eighty (80) years imprisonment. Lawson and Brown appeal to this Court as a matter of right. After a review of the record, we affirm the judgments of the Laurel Circuit Court.

BACKGROUND

The Laurel County Grand Jury returned an indictment against Appellants charging each with second degree arson and second degree burglary. The indictment alleged each Appellant was subject to penalty enhancement as a first degree persistent felony offender. The charges stemmed from the investigation of a fire started in a home belonging to Robert Jenkins which substantially damaged one room of the home and caused smoke and water damage elsewhere in the residence. In the course of the investigation, Jenkins indicated to the investigating officer, Detective Riley of the Kentucky State Police, that he suspected Lawson and Brown as the culprits, and Detective Riley focused his investigation on Appellants. At trial, the Commonwealth relied upon circumstantial evidence suggesting Appellants unlawfully entered Robert Jenkins's home and started a fire. Appellants defended against the charges at trial by arguing that the Commonwealth failed to satisfy its burden of proof and suggesting that the fire could have started by accident because no witness nor any physical evidence placed them inside the Jenkins home.

Karen Jones and Barbara Flannelly, Appellants' former girlfriends, testified at trial for the Commonwealth that, while returning from a trip the two couples had taken to the lake, Lawson noticed Jenkins's truck and stated "There that SOB is. Let's get him while he ain't home." Other testimony established that Lawson did not like Jenkins and referred to him as a "rat." Jenkins had worked as a police informant, and had provided information in the past which resulted in Lawson's father's arrest. Flannelly, who had driven the couples back from the lake on the date of the fire, testified that Lawson instructed her to drop the men off in Jenkins's neighborhood around the curve from the Jenkins home, drive to the house and verify that Jenkins was not home, and then retrieve Appellants ten (10) to twenty (20) minutes later. The women testified that, just before they dropped off Appellants, Lawson suggested to Brown, "let's hoodoo that punk." According to Flannelly and Jones, the women then proceeded to Jenkins's house, where Jones rang the doorbell and no one answered, and they "revved" the car's engine to signal Appellants that the house was vacant. The women testified that, as they pulled out of Jenkins's driveway, they met up with Flannelly's uncle and decided to travel to a local fast food restaurant. Flannelly and Jones testified that, upon their return from the fast food trip, they heard firecrackers and saw smoke coming from the Jenkins home.

Lois Lyon, Jenkins's neighbor, testified that she saw an older model four-door grey Oldsmobile sitting in Jenkins's driveway for approximately fifteen minutes with Flannelly behind the wheel and that she saw Flannelly's uncle enter the vehicle, Lyon testified that shortly thereafter she heard firecrackers explode, noticed smoke coming from Jenkins's house, and called 911 to report a fire.

Detective Riley testified that he located the vehicle Lyon described at Appellant Brown's mother's home, and later discovered that car belonged to Barbara Flannelly.

Other witnesses testified that, after the date of the fire at the Jenkins home, Appellants possessed an air rifle and a leather case containing a wrench. Jenkins testified that these items belonged to him and that he had seen them in his home the morning of the fire.

An arson investigator testified to his opinion that the perpetrator intentionally used a lighter or match to ignite what he referred to as combustible material (newspapers, magazines, records, etc.) cluttering the floor of Jenkins's living room.

TRIAL COURT'S LIMITATION OF LAWSON'S VOIR DIRE

Lawson asserts that the trial court committed reversible error by sustaining three objections during his trial attorney's voir dire and, therefore, limiting the scope of questioning in such a way to prevent him from meaningfully exercising his peremptory strikes.

The first such error occurred, according to Lawson, when the trial court prevented him from questioning a member of the jury panel regarding his prior jury service:

Defense: Have any of you served as jurors before today? Start right here. sir. Your number please.

Juror: 23. I, in Ohio, I served as a Juror on a case.

Defense: What type of case was that, sir?

Juror: It was arson, actually.

Defense: It was arson. Is there anything about that situation that will affect your judgment here today?

Juror: No, it was a very different type of ease.

Defense: What was the result of that case.

Comm: Objection, your honor.

Judge: Sustained as to the result. Defense: Anything about that case that will affect your decision?

Juror: Absolutely not.

Defense: How long ago was that?

Juror: Probably about six or seven years ago.

Lawson exercised one of his peremptory challenges to remove Juror 23, but argues that the trial court's ruling preventing his counsel from inquiring regarding the verdict in the prior case deprived him of information necessary to make a fully-informed decision regarding whether to excuse the juror.

Lawson's second alleged error concerns the trial court's ruling on the Commonwealth's objection to a question his trial counsel asked the potential jurors about their beliefs regarding leniency within the criminal justice system:

Defense: Anyone feel the courts are too lenient on a defendant when they set a punishment? Anyone feel that sentences should be longer than they are?

Comm.: I'm going to object to this, your Honor.

Judge: Sustained as to that question.

RCr 9.38 directs trial courts to afford parties a reasonable opportunity to conduct voir dire examination, and. in Thomas v. Commonwealth,¹ we recognized voir dire's instrumental role in garnering information from jurors to be later used in peremptory challenge decisions.² Of course, the ability to "effectively and intelligently" exercise challenges does not justify unlimited voir dire on any topic upon which counsel might wish to probe prospective jurors, and we have granted trial courts discretion to direct the scope of voir dire.³ We do not believe the trial court abused this discretion.

Counsel's questioning revealed that Juror 23 had sat on a jury in a factually distinct arson case a number of years ago in a different jurisdiction which the juror did not believe would have any influence on his decision in this case. Appellant correctly notes that in McGinnis v. Commonwealth⁴ this Court affirmed the trial court's finding that the Commonwealth had given a racially-neutral explanation for challenging two jurors who "had previously sat on a jury which returned a reckless homicide verdict which [the prosecution] considered pro-defense under the particular circumstances."⁵ We cannot agree, however, with Appellant's hasty generalization that a trial court abuses its discretion to control the scope of voir dire whenever it sustains an objection to a question which could potentially provide a racially-neutral explanation for the use of a peremptory challenge. Because parties may, essentially, remove jurors by peremptory challenge for any reason other than race or gender, the entitlement which Appellant attempts to "spin" from the McGinnis holding would permit unfettered questioning on any topic and strip the trial court of any discretion to control the scope of voir dire. Under the logic of Appellant's argument, every litigant has a right to ask prospective jurors to choose a favorite between Elvis Presley and the Beatles because a party could properly exercise peremptory challenges against Elvis-adverse jurors. The fallacy in Lawson's logic is demonstrated by its complete incompatibility with the discretion we have granted trial courts to control the scope of voir dire. We believe that the trial court acted within its discretion in sustaining the Commonwealth's objection to this question and further find that the trial court's ruling did not prevent Lawson from "effectively and intelligently" deciding whether to challenge Juror 23.

We likewise find no abuse of discretion in the trial court's ruling preventing Appellant from inquiring of the potential jurors' feelings regarding the leniency of criminal punishments. We recognize that we labeled "proper" a similar question which was posed by the Commonwealth in Iles v. Commonwealth.⁶ The fact that a given question might be permissible does not,...