Norton v. Com., No. 1998-SC-1076-MR.

CourtKentucky Supreme Court
Writing for the CourtStumbo
Citation37 S.W.3d 750
PartiesRick NORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Docket NumberNo. 1998-SC-1076-MR.
Decision Date22 February 2001
37 S.W.3d 750
Rick NORTON, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 1998-SC-1076-MR.
Supreme Court of Kentucky.
February 22, 2001.

Page 751

COPYRIGHT MATERIAL OMITTED

Page 752

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Albert B. Chandler III, Attorney General, David A. Sexton, Vickie L. Wise, Assistant Attorneys General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

STUMBO, Justice.


This case presents two issues for our consideration: first, whether the mention of sentencing information during voir dire and the guilt/innocence phase of trial requires reversal in this case, and second, whether a trial court may order a sentence for contempt to run consecutively to a felony charge.

Appellant, Rick Norton, was charged with second-degree burglary for breaking a basement window and entering the home of Judy Schill. Upon hearing the sound of crunching glass and someone walking around in the basement, Schill's son sought to foil the burglar. When Appellant became aware that someone was in the home, he took off running. Schill's two sons chased Appellant, caught him, and held him down until police arrived and arrested him. At trial, Appellant admitted breaking the window, but denied that he ever entered the dwelling. The jury convicted Appellant of second-degree burglary and of being a persistent felony offender (PFO) in the first degree. He was sentenced to ten years' imprisonment on the burglary count, enhanced to twenty years by the PFO conviction. The court then sentenced Appellant to ninety (90) days' incarceration after holding him in contempt for disruptive behavior at trial. The court ordered the contempt sentence to be run consecutively to the twenty-year burglary and PFO sentence,. Appellant now appeals as a matter of right. Ky. Const. § 110(2)(b). For the reasons to be set forth below, we affirm Appellant's conviction and sentence.

Appellant first argues the trial court committed reversible error in permitting the prosecutor to mention sentencing information during the guilt/innocence phase of the trial, and in failing to grant a mistrial upon Appellant's request. Because we have reconsidered our holding in Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990), we find Appellant's contention to be without merit.

The prosecutor first mentioned sentencing issues during voir dire when he questioned the prospective jurors on their ability to follow the law and consider any potential punishment in the authorized penalty range. Appellant objected several minutes later, rather than by contemporaneous objection as required by RCr 9.22. Nevertheless, we will address the merits of this argument in order to revisit and clarify the state of the law regarding the admissibility of sentencing information during voir dire.

Appellant claims our holding in Carter v. Commonwealth, 782 S.W.2d at 601, absolutely precluded the prosecutor from mentioning anything pertaining to sentencing or penalty range at any point prior to the sentencing phase of the trial. Indeed, in Carter, we held that "telling the jury sentencing information during the guilt/innocence phase of the trial violated the statutory process of a bifurcated trial as set forth in the new truth-in-sentencing statute, KRS 532.055," thereby denying the defendant due process of law. Id. Our fear was that if sentencing information is admitted and explained during the guilt/innocence phase of trial, the information may impermissibly influence the jury to find

Page 753

the defendant guilty of the offense which carries the penalty it desires to impose, rather than guilty of the offense (if any) which s/he actually committed.

However, we later clarified the holding of Carter in the case of Shields v. Commonwealth, Ky., 812 S.W.2d 152 (1991). In Shields, we reiterated that generally, jurors should not be exposed to "purely `sentencing information'" during the guilt/innocence phase of the trial. Id. at 153. We held, however, that the law "does not absolutely preclude their being given some information of that type incidental to a proper voir dire examination." Id. This is so because, "[i]n order to be qualified to sit as a juror in a criminal case, a member of the venire must be able to consider any permissible punishment. If he cannot, then he properly may be challenged for cause." Id. Here the prosecutor raised the issue of sentencing briefly during voir dire, for exactly the reasons of which we approved in Shields.

Appellant also argues that the prosecutor violated the Carter prohibition when he discussed the sentencing issue during his closing argument. The prosecutor's statement must be viewed in its proper context. During voir dire, defense counsel informed the jury that his client was guilty only of attempted burglary, not second-degree burglary. He repeatedly asked jurors if they would "max out" the defendant because he had admitted to attempting to burglarize the Schills' home. During closing arguments, defense counsel explained that Appellant had admitted all of the elements of second-degree burglary except for entering, and, thus, he could only be convicted of attempted burglary.

In response, the prosecutor contended during his closing argument that Appellant admitted every element short of entering the dwelling because he hoped to receive the substantially lesser penalty that he would receive if he were convicted of attempted burglary instead of burglary. The defense objected and moved for a mistrial, which the trial court denied. We...

To continue reading

Request your trial
23 practice notes
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 Junio 2004
    ...Carter v. Commonwealth, Ky., 782 S.W.2d 597, 599-600 [144 S.W.3d 785 (1989), overruled on other grounds by Norton v. Commonwealth, Ky., 37 S.W.3d 750, 753 (2001), habeas granted on other grounds by Carter v. Sowders, supra, note 2 (defendant did not personally attend deposition and evidence......
  • Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Junio 2004
    ...its conclusion. Carter v. Commonwealth, Ky., 782 S.W.2d 597, 599-600 (1989), overruled on other grounds by Norton v. Commonwealth, Ky., 37 S.W.3d 750, 753 (2001), habeas granted on other grounds by Carter v. Sowders, supra, note 2 (defendant did not personally attend deposition and evidence......
  • Cabinet for Health & Family v. J.M.G., 2013–SC–000797–DG
    • United States
    • Kentucky Supreme Court
    • 17 Diciembre 2015
    ...the judicial function—the case-deciding, law-interpreting role of courts in our tri-partite form of government. Norton v. Commonwealth, 37 S.W.3d 750, 754 (Ky.2001) (citing Arnett v. Meade, 462 S.W.2d 940 (Ky.1971) ). "The power of courts to punish for contempts," the United State......
  • Hilbert v. Com., No. 2002-SC-0095-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Mayo 2005
    ...the jury to convict based on the desired penalty rather than on the elements of each given offense." Norton v. Commonwealth, 37 S.W.3d 750, 753 (Ky. For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed. This case is rema......
  • Request a trial to view additional results
23 cases
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 Junio 2004
    ...Carter v. Commonwealth, Ky., 782 S.W.2d 597, 599-600 [144 S.W.3d 785 (1989), overruled on other grounds by Norton v. Commonwealth, Ky., 37 S.W.3d 750, 753 (2001), habeas granted on other grounds by Carter v. Sowders, supra, note 2 (defendant did not personally attend deposition and evidence......
  • Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Junio 2004
    ...its conclusion. Carter v. Commonwealth, Ky., 782 S.W.2d 597, 599-600 (1989), overruled on other grounds by Norton v. Commonwealth, Ky., 37 S.W.3d 750, 753 (2001), habeas granted on other grounds by Carter v. Sowders, supra, note 2 (defendant did not personally attend deposition and evidence......
  • Cabinet for Health & Family v. J.M.G., 2013–SC–000797–DG
    • United States
    • Kentucky Supreme Court
    • 17 Diciembre 2015
    ...the judicial function—the case-deciding, law-interpreting role of courts in our tri-partite form of government. Norton v. Commonwealth, 37 S.W.3d 750, 754 (Ky.2001) (citing Arnett v. Meade, 462 S.W.2d 940 (Ky.1971) ). "The power of courts to punish for contempts," the United State......
  • Hilbert v. Com., No. 2002-SC-0095-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Mayo 2005
    ...the jury to convict based on the desired penalty rather than on the elements of each given offense." Norton v. Commonwealth, 37 S.W.3d 750, 753 (Ky. For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed. This case is rema......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT