Spencer v. Commonwealth, 2012-CA-000996-MR
| Decision Date | 09 August 2013 |
| Docket Number | NO. 2012-CA-000996-MR,2012-CA-000996-MR |
| Parties | MATTHEW M. SPENCER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
In April 2011, the Jefferson County grand jury indicted Spencer on one count of first-degree assault or complicity to first-degree assault pursuant to Kentucky Revised Statutes (KRS) 508.010 and KRS 502.020, as well as one count of tampering with physical evidence pursuant to KRS 524.100. These charges arose from events several months earlier in January 2011, when Spencer, acting alone or in complicity with others, stabbed Jody Hill with a knife following a heated telephone argument and washed the blood evidence from the knife to prevent the police from using it as evidence. At trial, Spencer presented a self-defense theory.
Following the trial, a jury returned a verdict finding him guilty of second-degree assault and of tampering with physical evidence. The jury then recommended a ten-year sentence for the assault conviction and a three-year sentence for the tampering conviction, to be served consecutively for a total of thirteen years. Spencer filed a motion for a judgment notwithstanding the verdict or for a new trial on the basis of several trial errors, including the court's ruling on his request to play the entirety of the recorded in-car video made during the arrest and investigation, improper questions to the court clerk regarding Spencer's offenses, the lack of tampering evidence, and the denial of his motion to use hisproposed jury instructions.1 Following a sentencing hearing, the trial court entered a final judgment on May 7, 2012, finding Spencer guilty of second-degree assault and tampering with physical evidence and sentencing him to thirteen years' imprisonment pursuant to the jury's recommendation. By separate order entered the same day, the court denied Spencer's post-trial motions, but granted him leave to proceed in forma pauperis on appeal and appointed the Louisville Metro Public Defender to represent him. This appeal follows.
On appeal, Spencer raises two issues. The first addresses the constitutionality of RCr 9.40 and KRS 29A.290(2)(b) based upon a purportedly improper delegation of legislative authority. The second addresses language in the jury instructions. Because these issues were not preserved, Spencer requests that this Court review the issues for plain error pursuant to RCr 10.26.
RCr 10.26 defines a palpable error as an "error which affects the substantial rights of a party [that] may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."
In Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006), the Supreme Court of Kentucky recently described the palpable error standard of review:
While the language of RCr 10.26 and Federal Rule of Criminal Procedure 52(b) differ substantially, and recognizing that this Court is not obligated to follow [United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)], we nevertheless believe it to be a valuable guide in the application of our palpable error rule. To discover manifest injustice, a reviewing court must plumb the depths of the proceeding, as was done in Cotton, to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.
Martin, 207 S.W.3d at 4. See also Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) () the error was clear or plain under existing law; 2) it was more likely than ordinary error to have affected the judgment; and 3) it so seriously affected the fairness, integrity, or public reputation of the proceeding to have been jurisprudentially intolerable). With this standard in mind, we shall address Spencer's unpreserved arguments.
Spencer's first argument relates to the validity of RCr 9.40. With this rule, the Supreme Court of Kentucky set forth the number of peremptory challenges the parties in a felony criminal trial are entitled to:
As Spencer states in his brief, the Supreme Court's authority to adopt RCr 9.40 is found in KRS 29A.290(2):
KRS 29A.290 (emphasis added).
Spencer's argument is that KRS 29A.290 is invalid because in creating the statute, the General Assembly improperly delegated its legislative duty to alter the common law to a judicial body. More specifically, he asserts that the question of peremptory strikes is one of substantive law and therefore beyond the "practice and procedure" authority granted to the Supreme Court in § 116 of the Kentucky Constitution.2 Rather, § 28 of the Kentucky Constitution makes thepower of the General Assembly over substantive law exclusive.3 The number and existence of peremptory challenges, if different from the common law, must be established by the General Assembly. And the common law only permitted peremptory challenges for the accused, not the prosecution. RCr 9.40 provides the Commonwealth with eight or nine peremptory challenges. Accordingly, because KRS 29A.290(2)(b) cannot serve as authority for the Supreme Court to fix the existence and number of peremptory challenges, Spencer argues that the Supreme Court did not have jurisdiction to enact RCr 9.40. Because the prosecution in this case was awarded nine peremptory challenges, the jury was improperly selected, entitling Spencer to a new trial.
On the other hand, the Commonwealth argues that the circuit court's following of RCr 9.40 cannot be reversible error because the rules of criminal procedure "govern procedure and practice in all criminal proceedings in the Court of Justice." RCr 1.02(2). Furthermore, the Commonwealth cites to Commonwealth v. Hillhaven Corp., 687 S.W.2d 545 (Ky. App. 1985), for the proposition that this Court, as an intermediate appellate court, is limited in its review to determining whether the action was erroneous under the rules. The Commonwealth goes on to dispute the merits of Spencer's argument, stating that the common law on peremptory challenges was no longer in force under KentuckyConstitution § 2334 once the common law had been supplanted by acts of the General Assembly. The Commonwealth also points out that KRS 29A.290 became effective the day after the General Assembly adopted the version of the criminal rules, including RCr 9.40, in which the General Assembly set an initial number of peremptory challenges for both parties. Moreover, the General Assembly had also included a rule explaining the purpose of the criminal rules in RCr 1.04: Based upon these circumstances, the Commonwealth asserts that any delegation to the Supreme Court was not unfettered.
In addition, the Commonwealth points out that Spencer's rights were not limited in any way because he was able to use the peremptory challenges allowed to him. He also did not argue that an unqualified juror sat on his jury.
We must agree with the Commonwealth's position in the present matter. As we stated in Hillhaven, 687 S.W.2d at 547. Furthermore, we agree that the General Assembly did not improperly delegate its legislative duty to the Supreme Court in the area ofperemptory challenges. We perceive no constitutional infirmities in either KRS 29A.290 or RCr 9.40. The circuit court properly followed RCr 9.40 in permitting each party nine peremptory challenges in the trial of this matter. Therefore, we find no plain or palpable error under...
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