Moorman v. Commonwealth Of Ky.
| Decision Date | 18 November 2010 |
| Docket Number | No. 2009-SC-000420-MR.,2009-SC-000420-MR. |
| Citation | 325 S.W.3d 325 |
| Parties | Semonin T. MOORMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
Appellant, Semonin T. Moorman, appeals as a matter of right 1 from a judgment entered upon a jury verdict convicting her of first-degree manslaughter and sentencing her to twenty years' imprisonment.
In this appeal she raises two arguments. First, that her conviction is invalid because one of the assistant Commonwealth's attorneys involved in her prosecution had not been properly sworn in as a member of the Kentucky bar, and was therefore an unlicensed attorney at the time of trial; and second, that the trial court erred when it disallowed evidence of the alleged victim's violent behavior which Appellant claims was relevant to her use of self-defense; and, that the trial court erred by disallowing evidence relating to the victim's prior drug use.
For the reasons explained below, we affirm.
In the light most favorable to the verdict, the facts relevant to this appeal are as follows. On the afternoon of July 28, 2007, Patricia Shoulders went to the residence of Tasha Bryant. Shoulders, who appeared to have no serious injuries, told Bryant that she had just been in a fight and wanted to use the telephone. As they talked, Appellant, with several other persons, approached the Bryant residence. When Appellant demanded that Shoulders come off the porch, Shoulders responded, “No Tasha, I don't want to fight anymore, I don't want to fight them anymore.” Appellant then went onto Bryant's porch armed with a knife and began fighting with Shoulders. Bryant saw a knife in Appellant's hand as she approached. After several minutes of fighting, Appellant left and Shoulders, obviously wounded, slumped over onto Bryant's knees. Shoulders was transported to the hospital, where she was pronounced dead. The cause of death was a stab wound. A knife with Shoulders's blood on it was found in Bryant's yard.
Appellant was indicted for Shoulders's murder. At trial, she claimed that prior to the scuffle on Bryant's porch, Shoulders had attacked her from behind with a hammer in the Iroquois housing project across the street from Bryant's residence; that she stabbed Shoulders then to ward off the attack; and that she did so in self-defense. The medical evidence established that the stab wound was a deep wound to Shoulders's left lung and right ventricle of her heart, and that the wound was an “immediately life threatening injury.” Appellant does not challenge the sufficiency of the evidence to support her conviction. At the conclusion of the trial, the jury convicted Appellant of first-degree manslaughter.
Appellant first contends that her conviction was improper because an unlicensed attorney participated in the presentation of the Commonwealth's case against her. While she has identified no specific prejudice resulting from his participation in the trial, she argues that the error was structural, and is therefore not subject to harmless error analysis. 2
At the final sentencing hearing, it was disclosed to the trial court that, at the time of the trial, Logan Sims, one of the two assistant prosecutors who presented the case against Appellant, had not been properly admitted to the Kentucky Bar pursuant to SCR 2.120. The other assistant prosecutor who tried the case, Arthur McLaughlin, was properly licensed as an attorney.
It is uncontested that Sims passed the Kentucky bar examination in October 2008, but was out of the country at the time of the formal swearing-in ceremony before the Kentucky Supreme Court. When he returned, a circuit court judge administered the constitutional oath to him and he began working in the Commonwealth's attorney's office. 3 Sims and the judge who administered the oath were apparently unaware of SCR 2.120, which in relevant part provides:
When an applicant is approved for admission [to the bar] that applicant must apply for and be granted a certificate of admission prior to engaging in the practice of law in this state. As prerequisites for the issuance of such a certificate an applicant ... shall be administered the Constitutional Oath of Office either by a Justice of the Supreme Court or by the Clerk of the Supreme Court. Upon completion of the prerequisites, the Clerk shall deliver to the applicant a certificate of admission on a form approved by the Court, and the issuance of the certificate shall be duly recorded by the Clerk.
(emphasis added).
After the trial, Sims learned from the Kentucky Bar Association that the administration of the oath by the circuit court judge was insufficient for his admission into the bar. The Commonwealth concedes that Sims was not properly admitted to the bar at the time of the trial. Appellant does not contend that Sims or the Commonwealth's attorney had any knowledge of the mistake, or otherwise acted in bad faith. When informed of the error, Sims's work at the Commonwealth attorney's office was suspended until the oath was administered in accordance with the rule.
KRS 15.760(3) provides, in relevant part, that “ All assistant Commonwealth's attorneys shall be licensed practicing attorneys.” (emphasis added). Because Sims had not complied with the oath requirements of SCR 2.120, he was not properly licensed during Appellant's trial. For this reason, error occurred as a result of his participation in the trial as an assistant Commonwealth's attorney, even if as the Commonwealth suggests, his role at trial was subordinate to that of the other prosecutor, Mr. McLaughlin.
The Kentucky Constitution Section 228 specifies who is required to take the constitutional oath, and the form of the oath:
Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.
(emphasis added). Significantly, however, our Constitution is silent upon the issue of who may or must administer the oath. Section 116 of the Kentucky Constitution directs that the Supreme Court, “shall by rule, govern admission to the bar and the discipline of members of the bar.” SCR 2.120 is a clear manifestation of that constitutional directive.
Though there was error relating to Sims's participation in the trial, it is fundamental that “no error or defect in any ruling ... or in anything done or omitted by the court ... is ground for granting a new trial or for setting aside a verdict ... unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.” RCr 9.24. Moreover, we “must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” Id. “Virtually all errors, therefore, are subject to harmless error analysis.” Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky.2009).
Appellant argues that this case presents a matter of structural error and is not subject to harmless error analysis. “Structural” errors are errors “which are, per se, reversible because they undermine the fundamental legitimacy of the judicial process.” Id. at 232. Structural errors are, therefore, not subject to harmless error analysis at all. “In such cases, the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ”
Washington v. Recuenco, 548 U.S. 212, 219, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (citation and footnote omitted). 4
We are unable to discern any federal constitutional provision which implicates the right of a defendant to be tried by a licensed attorney. Moreover, because Section 228 of our Constitution provides only that the oath must be administered prior to entering the practice of law, without directing who must administer the oath, that fact that Sims swore the prescribed oath before an official generally authorized to administer oaths 5 avoided constitutional error. Thus, we cannot construe Sims's participation in the trial as an error of constitutional magnitude. Having the required educational background, and having passed the Kentucky Bar exam and the character/fitness review, he was otherwise competent to participate in the trial. Certainly the participation of an ineffectively sworn prosecutor does not measure up to the substantial constitutional reasons found to be structural error in the cases listed above (see footnote 4). The error here did not render the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Thus, we conclude that the error, in this case, was not structural, and is subject to harmless error review.
Appellant has identified no prejudice whatsoever as...
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