Hubert Umberto Johnson v. Commonwealth of Kentucky ( 2007 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : SEPTEMBER 20, 2007
NOT TO BE PUBLISHED
'Suprrutr Courf of `~R
2005-SC-000948-MR
HUBERT UMBERTO JOHNSON APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE GARY D. PAYNE, JUDGE
NO. 05-CR-000254-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Hubert Umberto Johnson, was convicted by a Fayette Circuit
Court jury of first-degree manslaughter, first-degree arson, and tampering with
physical evidence . For these crimes, Appellant was sentenced to fifty years
imprisonment .' He now appeals to this Court as a matter of right. Ky. Const. §
110(2)(b) . Appellant asserts three main arguments on appeal : 1) that the
prosecutor in her closing argument misstated the law thus essentially negating
the jury's consideration of the self-defense and imperfect self-defense
instructions, 2) that Appellant was not provided with the opinion of the fire-
causation specialist which kept him from properly supporting his version of the
' The jury sentenced Appellant to twenty years for manslaughter, thirty
years for arson, and five years for tampering, and recommended that those
sentences run concurrently for a total of thirty years imprisonment . However, the
trial judge ordered that the sentences for manslaughter and arson run
consecutively and the sentence for tampering run concurrently with those
sentences for a total of fifty years imprisonment .
facts, and 3) that improper hearsay evidence was admitted which kept Appellant
from properly confronting evidence that the victim was alive at the time he
reached the hospital . For the reasons set forth herein, we affirm Appellant's
convictions .
On the morning of December 18, 2004, Appellant got into an altercation
with Patrick Connor (Connor) . Before the altercation the men had argued over
marijuana, which bedroom Appellant and his girlfriend, Melissa Pauley (Pauley),
should occupy, and the cleanliness of a bathroom. Apparently all of the arguing
(and Connor's intoxication) led Connor to attack Appellant and attempt to choke
him . During the fight, Appellant gained control of a hammer and hit Connor with
it. Pauley testified at trial that Appellant beat Connor, forcing him to the floor
before grabbing the hammer from another part of the room . Appellant hit Connor
with the hammer around 40 times .
With Connor beaten to the floor, Appellant and Pauley put his bloody
clothes and the hammer in garbage bags and left the house. As they were
leaving, Appellant started a fire, either accidentally or intentionally, causing major
damage to the house. Appellant and Pauley then disposed of the garbage bags
at a near-by dumpster.
1. The prosecutor's statements were proper, and did not negate the jury's
consideration of Appellant's self-defense and imperfect self-defense
instructions
One of Appellant's theories at trial was that he acted in self-defense
because Connor attacked him. To support this argument, Appellant alleged that
Connor first attacked him with his hands and then threatened him with a shotgun.
Because of this, Appellant claimed that he acted in self-defense, or if the jury
thought the usage of the hammer was extreme force, he claimed imperfect self-
defense.
During her closing arguments, the prosecutor responded to Appellant's
self-defense claim by arguing that when Appellant picked up the hammer and
beat Connor, there was no true threat justifying self-defense because Connor
was drunk and subdued . The prosecutor stated, "There was no threat that
warranted him pulling out that hammer, none, no threat, and therefore he was not
entitled to use self-protection . There was no threat then and there of death or
serious physical injury." The prosecutor continued this strain of reasoning by
attacking the idea that Appellant would have had any belief to act in self-defense
when picking up the hammer. The prosecutor ultimately stated, "Well, we've
already talked about why he wasn't privileged to act in self-protection, to use this
hammer. Fists, yes, no doubt . But you pick up a hammer and introduce it into
that situation ; he was not privileged to act in self-protection ." Upon objecting to
the prosecutor's remark, Appellant's trial counsel argued that the prosecutor's
statement misstated the law on self-defense and in effect negated the jury's
consideration of Appellant's self-defense claim . The prosecutor replied that, "For
the erroneous belief to kick in, he has to truly believe that at the time he picked
up that hammer, he has to truly believe he needed to use it. And I'm arguing that
he didn't believe he needed to use it." The trial court ultimately overruled the
objection .
The prosecutor's statements in her closing argument do not amount to a
misstatement of the law or error. A prosecutor is allowed broad leeway in
constructing an argument and "may comment on tactics, may comment on
evidence, and may comment as to the falsity of a defense position." Slaughter v.
Commonwealth , 744 S.W.2d 407, 412 (Ky. 1987) ; see also Hunt v.
Commonwealth , 466 S.W.2d 957, 959 (Ky. 1971) ("a Commonwealth's Attorney
is entitled to draw reasonable inferences from the evidence, to make reasonable
comment upon the evidence and to make a reasonable argument in response to
matters brought up by the defendant") ; Koonce v. Commonwealth, 452 S.W.2d
822, 826 (Ky. 1970) ("There is nothing improper in the Commonwealth Attorney
expressing his opinion as to the guilt of the defendants as long as it is based
upon the evidence in the case.")
Here, the prosecutor's statements referred to the Commonwealth's theory
of the case that Appellant did not have the requisite state-of-mind to justify self-
defense at the time he began to use the hammer. She was not trying to
comment that the mere use of a hammer completely precluded a self-defense
instruction . These statements were supported by evidence developed at trial,
namely the testimony of Pauley who stated that Appellant had subdued Connor,
walked away from him to pick up the hammer, and then commenced beating him
with it. Since the prosecutor was merely trying to present the facts as the
Commonwealth believed them to be, no misstatement of law occurred .
It is important to note that even if the prosecutor's statements confused
the jury in regards to Appellant's claim of self-defense, the jury instructions
provided a correct statement of the law. The jury instructions properly gave
Appellant a self-defense instruction but stated that if the jury believed that
Appellant was mistaken in his use of force against Connor, or used too much
force, he could be found guilty of lesser included offenses due to imperfect self-
defense . Because of the correct jury instruction, any theoretical harm to
Appellant was mitigated . Matheney v. Commonwealth , 191 S .W.3d 599, 606
(Ky. 2006) (holding that, despite a misstatement of law from the prosecutor, any
damage was mitigated by the fact that the jury instructions were proper and juries
are presumed to follow only the evidence and instructions provided) . Hence,
there is no error here .
II. Appellant had adequate notice of the conclusions of the fire-
causation specialist
For his second assignment of error, Appellant claims that he was denied a
fair trial because in discovery he was not provided the opinion of the
prosecution's expert in fire-causation that a cigarette did not start the arson which
burned Connor's house . Appellant believes that without this discovery he was
denied the opportunity to refute the expert's final conclusions, either through his
own expert witnesses or cross-examination. A claim of error regarding a trial
judge's decision about discovery is reviewed under an abuse of discretion
standard . Berrv v. Commonwealth , 782 S .W.2d 625, 627-628 (Ky. 1990).
Prior to the fire-causation expert's testimony, Appellant requested a bench
conference and complained that the prosecutor in her opening statement stated
that the expert would testify that the fire was intentionally set. Appellant stated
that he did not have a report from the fire-causation expert drawing this
conclusion or showing how he came to said conclusion. In response, the
prosecutor referenced a supplemental report prepared by another fire
investigator, Captain Branham, which stated his opinion that the fire patterns in
the chair are consistent with the testimony Pauley gave in regards to how the fire
began - in particular that Appellant took her lighter and set the chair on fire .
Appellant, however, believed the language in the main report and
supplemental report was imprecise and did not preclude the possibility that the
fire was started accidentally by Appellant tossing a lit cigarette onto a chair in the
house . The trial judge believed that was a point Appellant could bring out in
cross-examination and overruled the objection . The fire-causation expert
ultimately testified that burn patterns at the arson scene indicated that the fire
was started in a chair and that a lit cigarette could not have been the cause of the
fire .
From the record presented, Appellant had more than adequate notice of
the ultimate conclusion reached by the fire-causation expert . Not only did the
supplemental report mention that the burn marks supported Pauley's version of
how the fire started, but a uniform citation prepared within days of the murder
and signed by Captain Branham indicated that all burn patterns at the scene
were consistent with Pauley's version . Further, at a bench conference prior to
the beginning of trial, the prosecutor indicated that a key witness was not yet
present in the courtroom . The prosecutor stated that the witness was important
to the Commonwealth because she established a time frame for how quickly the
fire began . This was meant to support the fire-causation expert's opinion that the
fire could not have been started by a lit cigarette. Finally, the Appellant's counsel
2 The citation stated : "Pauley states she gave Johnson a cigarette lighter
and he later told her he used the lighter to set a chair on fire in the front room of
115 Alabama Ave. This to cover a murder he had committed at the same house.
All patterns found at scene consistent with statements made. /s/ Capt. Branham,
Fire"
6
even read from a transcript while cross-examining Pauley which indicated the
arson investigator's doubt regarding the cigarette theory . All of this information
taken together should have given or shown that Appellant had adequate notice of
the premises of the fire-causation expert. See Milburn v. Commonwealth , 788
S .W.2d 253, 255-256 (Ky. 1989) (holding that an expert could testify regarding
his opinion although not included in his report, because his opinion was based on
premises included in the initial investigation) ; Barnett v. Commonwealth, 763
S .W.2d 119, 123 (Ky. 1988) (holding that it was reversible error to allow an
expert to testify regarding an opinion based upon a premise that was not
disclosed or unknown to the defendant) .
While Appellant further argues that RCr 7.24(1) requires the
Commonwealth to disclose "results or reports of physical mental examinations,
and of scientific tests or experiments made in connection with the particular
case," such information must only be disclosed "[u]pon written request ." It does
not appear from the record that any such written request was made . Additionally,
if there was such a request for all information regarding the fire-causation expert,
and if the Appellant knew it was not complied with prior to trial, Appellant's
declaration that he was ready at the beginning of trial waived any right to now
complain . See Barclay v. Commonwealth , 499 S.W.2d 283, 285 (Ky. 1973) ("If
there was non-compliance with the order to furnish information the response that
Barclay was ready for trial was a waiver."). There is no error here .
III . Any error in the admission of hearsay evidence that the victim was alive
when he reached the hospital was cured and harmless
Appellant finally argues that the admission of hearsay evidence from
Officer Tim Russell regarding whether Connor was alive when he reached the
hospital prevented him from properly defending against the charge of first-degree
arson . At trial, Officer Russell testified that he saw a heart monitor hooked up to
Connor at the hospital which indicated that Connor may have been alive when
the fire started at his house. Officer Russell further testified that later in the night
Connor was deceased or pronounced deceased. Appellant objected to Russell's
statement arguing that a determination of whether Connor was alive at the
hospital is a critical factor that needs to be determined for a first-degree arson
conviction. The trial court, while overruling Appellant's motion for a mistrial,
agreed to give the following admonishment to the jury, "[b]efore we proceed, I will
admonish the jury that the last answer, if you will recall, whether he was
deceased or not, this witness is not qualified to make that determination so you
are to disregard the answer from this witness."
Appellant argues that Officer Russell's statements that Connor may have
been alive at the hospital proves a critical fact necessary for Appellant to be
convicted of first-degree arson - namely that to be guilty of first-degree arson the
fire must be set with someone living inside the structure . However, KRS §
513 .020 does not include such a requirement . KRS § 513 .020(1) states in
pertinent part:
A person is guilty of arson in the first degree when, with intent to
destroy or damage a building, he starts a fire or causes an
explosion, and; (a) The building is inhabited or occupied or the
person has reason to believe the building may be inhabited or
occupied
(emphasis added) . So for Appellant to be convicted of first-degree arson, he only
has to believe someone was alive inside of the house. There was adequate
evidence presented at trial to indicate that Appellant did believe someone was
alive in the house when the fire was set. Pauley in her testimony indicated that
as she left the house with Appellant after the fight, she heard Connor moaning
and muttering . Even more importantly, in Appellant's video taped statement
played during trial, he indicated surprise that Connor was deceased and
indicated that Connor was breathing and moving after the struggle .
Further, any negative effect Officer Russell's testimony caused to
Appellant was cured by the admonishment the trial judge gave to the jury. "A jury
is presumed to follow an admonition to disregard evidence; thus, the admonition
cures any error." Combs v. Commonwealth, 198 S .W .3d 574, 581 (Ky. 2006) .
Hence the trial judge's admonishment telling the jury to disregard Officer
Russell's testimony regarding whether Connor was alive or dead cured any error.
For the reasons set forth herein, the judgment and sentence of the Fayette
Circuit Court is affirmed .
Lambert, C.J . ; Cunningham, Minton, Noble, Schroder and Scott, JJ.,
concur. Abramson, J ., not sitting .
COUNSEL FOR APPELLANT :
Randall L. Wheeler
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
Jeffery A . Cross
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601