Manns v. Com.

• Decision Date: 13 June 2002
• Docket Number: No. 2000-SC-0331-DG.,2000-SC-0331-DG.
• Citation: 80 S.W.3d 439
• Parties: Earl O'Neal MANNS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

80 S.W.3d 439

Earl O'Neal MANNS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-SC-0331-DG.

Supreme Court of Kentucky.

June 13, 2002.

As Modified on Grant of Rehearing August 22, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel T. Goyette, J. David Niehaus, Louisville, KY, for appellant.

A.B. Chandler, III, Attorney General, State Capitol, Frankfort, KY, Shawn C. Goodpaster, Special Assistant Attorney General, Louisville, KY, J. Hamilton Thompson, Assistant Attorney General, Frankfort, KY, for appellee.

COOPER, Justice.

On March 28, 1997, Appellant Earl O'Neal Manns, then age eighteen, shot and killed Bashawn Wilson during an argument over the outcome of a computer "Play Station" basketball game. Following a one-day trial in the Jefferson Circuit Court on August 25, 1998, Appellant was convicted of manslaughter in the first degree and sentenced to confinement in the penitentiary for seventeen years. The Court of Appeals affirmed, and we granted discretionary review. The principal issue on appeal is whether it was error to admit evidence at trial of Appellant's prior juvenile adjudication for wanton endangerment in the first degree.

On March 12, 1994, Appellant, then age fifteen, was arrested for his involvement in a "mobile shooting" and charged in the Jefferson District Court (Juvenile Division) with wanton endangerment in the first degree. He admitted guilt, and his case was informally adjudicated with a disposition of probation to the supervision of the Cabinet for Human Resources. KRS 635.060(2) (pre-1997 version). In 1996, the General Assembly amended KRS 532.055(2)(a) (felony sentencing hearings) to add the following as subsection 6:

Juvenile court records of adjudications of guilt of a child for an offense that would be a felony if committed by an adult. Subject to the Kentucky Rules of Evidence, these records shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to this section may be used for impeachment purposes during a criminal trial and may be used during the sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated delinquent of an offense that would be a felony if the child had been an adult shall not be used in finding the child to be a persistent felony offender based upon that adjudication....

1996 Ky.Acts, ch. 358, § 8, eff. July 15, 1997 (emphasis added). The bill that included this amendment also added identical language to KRS 532.025(1) (capital offense sentencing hearings), 1996 Ky. Acts, ch. 358, § 7, eff. July 15, 1997, and KRS 610.320(4) (disclosure of juvenile records), 1996 Ky.Acts, ch. 358, § 36, eff. July 15, 1997.

Appellant's 1994 juvenile adjudication was utilized in both the guilt and penalty phases of his 1998 trial. Before cross-examining Appellant during the guilt phase, the prosecutor orally moved the court for permission to impeach Appellant with his juvenile adjudication, citing KRS 532.055(2)(a)6. Defense counsel objected on grounds that the statute was enacted after both Appellant's 1994 juvenile adjudication and the 1997 shooting of Bashawn Wilson, and that its retroactive application to this case would violate both KRS 446.080(3) and the Ex Post Facto Clause. U.S. Const., art. I § 10; Ky. Const. § 19(1). The trial judge responded that, although KRS 532.055(2)(a)6 appeared to violate the doctrine of separation of powers, the stated objection of improper retroactive application was not grounds for suppression and overruled the objection for that reason. Despite the trial judge's unsubtle hint, the objection was not renewed on other grounds. The prosecutor then proceeded to impeach Appellant as follows:

Q. Have you previously been convicted of a felony?

A. Yes, I have.

No objection was made to the form of the question, and no motion was made to strike Appellant's obviously incorrect answer. Nor was any limiting admonition requested or given. See Golden v. Commonwealth, 275 Ky. 208, 121 S.W.2d 21, 26-27 (1938). During the penalty phase of the trial, the prosecutor introduced a certified copy of the entire record of Appellant's 1994 juvenile proceedings.

The trial judge correctly ruled that neither KRS 446.080(3) nor the Ex Post Facto Clause precluded application of KRS 532.055(2)(a)6 to Appellant's trial — and for the very same reason that the statute does violate the separation of powers doctrine, i.e., the subject matter of the statute pertains to practice and procedure. We rejected the same argument in Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987), when considering application of the original version of KRS 532.055 to a defendant whose offense had been committed prior to the statute's enactment:

The act deals with procedures at trial. The procedure at trial is governed by the rules of procedure which exist at the time of trial, not at the time of the commission of the offense. No one has a vested right in the modes of procedure, and the state, upon grounds of public policy, may regulate them at pleasure.

Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter and without reference to the date of the commission of the offense charged.

Reneer, 734 S.W.2d at 798 (citing Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983), cert. denied, 465 U.S. 1072, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984)).

Appellant raised new and different issues before the Court of Appeals than were presented to the trial court, including, belatedly, that the statute violates the doctrine of separation of powers and that its application to Appellant's trial was precluded by Rule 609 of the Kentucky Rules of Evidence (KRE). The Court of Appeals chose to address these issues despite the fact that they were not preserved for appellate review. See Ruppee v. Commonwealth, Ky., 821 S.W.2d 484, 486 (1991); Kennedy v. Commonwealth, Ky., 544 S.W.2d 219, 222 (1976). Because of the likelihood that the issue presented by KRS 532.055(2)(a)6 will frequently recur, especially since the same provision was also inserted into KRS 532.025(1), we, too, choose to elevate substance over procedure in this instance and address the issue now rather than later. In doing so, we note that the premise for the principle that issues not presented to the trial court are not preserved for appellate review is that the trial court should be afforded a reasonable opportunity to rule upon alleged errors that were not brought to his attention and otherwise could have been corrected at trial. Sherley v. Commonwealth, Ky., 889 S.W.2d 794 (1994); Green v. Commonwealth, Ky., 556 S.W.2d 684 (1977); Jenkins v. Commonwealth, Ky., 477 S.W.2d 795 (1972). Here, there was no need to bring the separation of powers issue to the attention of the trial judge, for, by his own remarks, he was already aware of its existence.

Section 27 of the Constitution of Kentucky creates three distinct departments of government, and Section 28 precludes one department from exercising any power properly belonging to either of the others. Section 116 reserves to the Supreme Court the power to prescribe rules of practice and procedure for the Court of Justice. And that is why KRE 1102(b), adopted in 1992 by both the General Assembly and this Court, provides that "the General Assembly ... may not adopt amendments or additions to the Kentucky Rules of Evidence that constitute rules of practice and procedure under Section 116 of the Constitution of Kentucky." Even prior to the 1975 adoption of the Judicial Article, which included Section 116, the General Assembly had formally recognized the authority of the judiciary over matters of practice and procedure:

The Constitution of the Commonwealth of Kentucky vests the judicial power of the Commonwealth, except impeachment, in the Court of Appeals and the constitutional courts ...; and it is recognized that the vesting of judicial power carries with it the authority to regulate judicial proceedings where the Constitution does not specifically authorize the exercise of some part of that power by another department.

The General Assembly finds that, although rules developed under the third constitution by the legislature have governed criminal proceedings as a matter of comity on the part of the courts since that time, the administration of civil justice under rules of procedure promulgated by the Judicial Department subsequent to revision of civil procedure in 1952 has demonstrated the merit of having procedural rules promulgated by the department responsible for their proper functioning.

It is therefore declared to be the policy of the General Assembly, insofar as the Legislative Department is empowered to express policy on matters of judicial procedure, that prescription of rules governing details of procedure will be left to the discretion of the Judicial Department after the effective date of this Act.

1962 Ky.Acts, ch. 234 (Preamble). That statement of policy was constitutionalized by the subsequent adoption of Section 116.

KRS 532.055 was enacted in response to a public outcry over the fact that a petit jury, in the highly publicized trial of George Wade for the murder and kidnapping of two high school students, sentenced Wade to life in prison instead of death. The jurors and the victims' families complained that the jurors had been required to fix Wade's sentence without knowing of either his extensive criminal history or his parole eligibility date.¹ Thus, KRS 532.055, dubbed "truth-in-sentencing" by its sponsors, was enacted to fill that void. The statute did not purport to address what evidence was admissible or inadmissible for the purpose of proving guilt or innocence. In fact, it established a bifurcated proceeding so...