Mathews v. Commonwealth , 997 S.W.2d 449 ( 1999 )

GRAVES, Justice.

Appellant, Nefehevious Mathews, was convicted in the Warren Circuit Court of intentional murder and sentenced to life imprisonment. He appeals to this Court as a matter of right. After hearing oral arguments and reviewing the record, we affirm.

On October 25, 1995, Appellant and Dalton Morrow engaged in an argument which escalated to the point that there was an exchange of gunfire. Appellant’s gunfire missed Morrow, but fatally struck an innocent bystander who was standing some distance away. A Warren County jury found that Appellant fired first with the intent to kill Morrow, and convicted him of intentional murder.

Appellant’s first claim of error is the trial court’s refusal to suppress his statement to the arresting officer. He argues that the prosecution withheld this statement in violation of a discovery order. Appellant claims that the court’s refusal to suppress this statement precluded his testifying and thereby denied him due process and a fair trial.

At the close of its case-in-chief, the Commonwealth called Darlene Lackey, a detective with the homicide unit of the Cincinnati Police Department. Defense counsel objected and claimed surprise because there was no motion to secure the attendance of Detective Lackey and there was not a returned subpoena in the file. At sidebar, defense counsel was informed that Detective Lackey was prepared to testify not only as to the date and location of Appellant’s arrest, but also to Appellant’s oral statement given after signing a waiver of his constitutional rights. Appellant told Detective Lackey that he did not shoot the victim, but that a third party fired the fatal shot. Prior to Detective Lackey being called, Appellant apparently planned to claim self-defense.

The trial court ruled Detective Lackey could testify during the Commonwealth’s case-in-chief only as to when and where she arrested Appellant, because the testimony was relevant to show flight; however the trial court further ruled that if Appellant chose to testify, and claimed self-defense, the Commonwealth could introduce the statement during rebuttal to show a prior inconsistent statement. Appellant argues this ruling prevented him from testifying, thereby “gutting” his self-protection defense.

Appellant contends he was entitled under RCr 7.24(1) to have the Commonwealth provide in pretrial discovery the substance of his own alleged statement. Appellant also cites the Commonwealth’s constitutional duty to provide an accused with any exculpatory evidence. Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 701 (1995). Citing McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 521 (1994), overruled on other grounds, Elliott v. Commonwealth, 976 S.W.2d 416 (1998), Appellant argues a defendant’s own testimony is essential to the presentation of a self-protection defense. Additionally, Appellant points to RCr 7.24(9), which allows a trial court to direct a party to permit discovery, grant a continuance, prohibit the introduction of undisclosed evidence, or “enter such other order as may be just under the circumstances.”

The Commonwealth responds that Appellant, on the advice of counsel, made a strategic decision, based upon the facts and circumstances as they existed at the time, not to testify and risk impeachment. The Commonwealth further contends that Appellant could have chosen to testify by avowal under RCr 9.52 and, since no record was made of what Appellant actually would have testified to, this Court has no way to determine whether Appellant’s testimony would have been inconsistent with his prior oral statement. We agree.

RCr 7.24(1) states in relevant part:

Upon written request by the defense, the attorney for the Commonwealth shall disclose the substance of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant ... written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody, or control of the Commonwealth....

(Emphasis added).

In Anderson v. Commonwealth, Ky., 864 S.W.2d 909, 914 (1993), we held the oral statement of one defendant which was recorded in a social worker’s notes was clearly discoverable under RCr 7.24. However, this Court stated in Berry v. Commonwealth, Ky., 782 S.W.2d 625, 627 (1990), “RCr 7.24 applies only to written or recorded statements.” This portion of Berry dealt with the defendant’s claim of a discovery violation where the prosecution had not provided prior to trial a witness’s statement identifying the defendant. At best, this would have been a claim of violation of RCr 7.24(2), which deals with statements made by witnesses, not 7.24(1), which deals with statements made by the defendant. However, in Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996), we upheld Berry in a RCr 7.24(1) context. In Partin, a police detective revealed for the first time at trial that the defendant had said, “Oh, well,” when he was informed of the state in which his estranged paramour’s corpse was found. Id. This Court found no harm in the admission of this statement and, despite paraphrasing the relevant portions of RCr 7.24(1), found the above quoted sentence from Berry applicable so that no error occurred. Id.

Concerning the nature of Appellant’s statement, there is a distinction between the cited case law and the facts at hand. Clearly, claiming that another was responsible for the shooting does not constitute an incriminating statement so as to fall under the guise of RCr 7.24(1). Further, although Appellant’s statement could be considered exculpatory, he was aware that he, in fact, made such an assertion to Detective Lackey. Appellant’s failing to reveal the statement to his counsel can only be viewed as a strategic decision.

An additional consideration is the fact that defense counsel chose to reserve opening statement and Appellant ultimately did not testify. As such, although Appellant had alluded to a self-protection defense, we have no way of knowing what Appellant’s testimony would have actually been. In Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), defendant Luce moved the trial court to preclude the prosecution from using a pri- or conviction to impeach him if he testified. The trial court denied the motion and Luce did not testify. On appeal, he argued that the trial court’s ruling effectively precluded him from testifying. Disagreeing with Luce’s position, the United States Supreme Court ruled that (1) in order for an appellate court to review the error, Luce had to testify so the court could determine whether there was any prejudicial effect; (2) any possible harm from the trial court’s decision was wholly speculative since Luce did not testify; (3) because Luce’s decision whether to testify did not likely turn on one single factor, the appellate court could not assume the adverse ruling motivated his decision not to testify; and (4) to raise and preserve for review a claim of improper impeachment of the defendant, the defendant must testify. Id. at 39-43, 105 S.Ct. at 461-464.

Kentucky has a procedure enabling a criminal defendant to testify by avowal in the event he believes it necessary to place his testimony into the record out of the presence of the jury. RCr 9.52. Appellant did not avail himself of this remedy. In the absence of anything in the record to indicate the substance of Appellant’s testimony, had he chosen to testify, this Court is unable to review such testimony to determine whether it would have been consistent or inconsistent with the prior statement. Appellant simply has failed to demonstrate that the trial court’s ruling precluded his testifying. A defendant does not have the right to present testimony free from the legitimate demands of the adversarial system.

Appellant next claims that the trial court committed palpable error in the sentencing phase when the trial court erroneously instructed the jury to consider imposing a penalty of life without probation or parole for twenty-five years when such a penalty was not authorized due to the lack of any aggravating circumstances. KRS 532.025(3). However, after deliberating an hour and a half, the jury recommended a sentence of life imprisonment. Appellant claims the error in the sentencing phase instruction “skewed what was clearly a compromise sentencing verdict.” Appellant argues the jury sought to impose the penultimate penalty which, under the correct instructions, would have been imprisonment for a term of years, not life. Therefore, the sentence would not have been the same had the error not been committed. Appellant cites RCr 9.54(1) for the proposition that the court must instruct the jury only on the law of the case. This claim of error is unpreserved. Appellant, therefore, seeks review under RCr 10.26.

The Commonwealth responds that RCr 9.54(2) precludes this Court from reviewing this error on appeal because the error in the instruction was not properly presented to the trial judge, thus affording him the opportunity to remedy the situation. The Commonwealth further asserts the error here does not reach the level of palpable error under RCr 10.26 and argues any error was harmless in light of the fact that the jury sentenced Appellant to a permissible term of years for a capital offense committed without an aggravating circumstance. The Commonwealth urges that the error was not so obvious that it was easily recognized or that it undermined Appellant’s constitutional right to a fair trial to a degree which would call into serious question the reliability of the judgment. Finally, the Commonwealth contends there was no manifest injustice because there is not a substantial possibility the sentence would have differed if not for the error where the jury did not clearly rely upon the erroneous instruction.

Case law does set forth a procedure for dealing with errors in penalty instructions. If the trial judge instructs the jury as to an improperly high maximum penalty, but the jury sentences the defendant to the minimum penalty, “no error prejudicial to the accused is committed for irrespective of what, under the law or the instructions, he might have received, he got only the least punishment prescribed by the statute.” Durham v. Commonwealth, Ky., 241 Ky. 612, 615, 44 S.W.2d 557, 558 (1931); see also Runyon v. Commonwealth, Ky., 215 Ky. 689, 694-95, 286 S.W. 1076 (1926); Dunn v. Commonwealth, Ky., 193 Ky. 842, 845-46, 237 S.W. 1072 (1922). When the trial judge instructs the jury as to an improperly low minimum penalty and the jury sentences the defendant to the improper minimum penalty, “the accused is not prejudiced.” Durham, supra, 241 Ky. at 615, 44 S.W.2d 557 (citing Mobley v. Commonwealth, Ky., 190 Ky. 424, 426, 227 S.W. 584, 585 (1921)). Where the trial judge instructs the jury as to an improperly high minimum penalty, but the jury sentences the defendant to a penalty greater than the improper minimum penalty, no prejudicial error has been committed. Middleton v. Commonwealth, Ky., 197 Ky. 422, 425, 247 S.W. 40, 42 (1923); Sebree v. Commonwealth, Ky., 200 Ky. 534, 540-41, 255 S.W. 142, 144-45 (1923). However, when the trial judge instructs the jury as to an improperly high minimum penalty, and the jury sentences the defendant to the minimum penalty as instructed, “[t]his error alone would justify a reversal.” Collier v. Commonwealth, Ky., 295 Ky. 486, 490, 174 S.W.2d 773, 775 (1943). Finally, where the trial judge instructs the jury as to an improperly high minimum and maximum penalty, and the jury sentences the defendant to a penalty which would have been the maximum under proper instruction, “the court committed a fatal error in so instructing the jury.” Short v. Commonwealth, Ky., 291 Ky. 604, 609, 165 S.W.2d 177, 179 (1942); see also, Durham, supra.

In this case, the judge instructed the jury as to an improperly high maximum penalty; however, the jury returned a sentence within the statutory range of sentences for intentional murder committed without an aggravating circumstance. In Russell v. Commonwealth, Ky.App., 720 S.W.2d 347 (1986), the Court of Appeals refused to consider an argument that the trial court over-instructed a jury when the defendant was ultimately convicted of a lesser-included offense. “[Cjonviction of a lesser-included offense renders the instruction on the greater offense harmless error.” Id. at 347. (Citations omitted).

Appellant has failed to demonstrate how he was prejudiced by an instruction upon which the jury did not rely. Nor has he substantiated his claim of a “compromised verdict.” Since Appellant received a statutorily valid sentence, no palpable error occurred. RCr 10.26

Finally, Appellant argues that the trial court erroneously permitted the Commonwealth to “glorify” the victim by reiterating that the victim was an innocent bystander and Appellant had no reason to defend himself. Appellant further takes issue with the prosecutor’s reference to the victim’s “mama and baby boy.” Appellant claims that these statements were irrelevant and highly prejudicial because the decedent’s conduct and state of mind were not at issue.

Again, we note that this error is unpreserved in that any objections Appellant did raise at trial differ from those presented on appeal. Nonetheless, the law has always permitted the prosecutor to present the human side of a victim. Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997). We do not believe the Commonwealth’s statements constituted “glorification” of the victim. No error occurred.

The judgment and sentence of the Warren Circuit Court is affirmed.

COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ„ concur. STEPHENS, J., dissents by separate opinion in which LAMBERT, C.J., and STUMBO, J., join.