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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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 PUBLISHEP AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 TUE 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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 26, 2018 NOT TO BE PUBLISHED
2017-SC-000202-MR
ANTHONY DRURY APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT v. HONORABLE DAVID A. TAPP, JUDGE NO. 16-CR-00066-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Anthony Drury appeals as a matter of right from the Lincoln Circµit
Court judgment sentencing him to twenty years' imprisonment for receiving
stolen property over $10,000, first-degree fleeing or evading police, and first-
degree wanton endangerment. Shortly before trial, Drury filed a motion for
continuance in order to subpoena two witnesses that were alleged to be
indispensable to his defense. After the trial court denied the motion, Drury's
counsel orally renewed the motion on the morning of trial, but the court again
denied the continuance.
On appeal, Drury argues that the trial court (1) abused its discretion in
denying his motion for continuance and (2) erred when it failed to instruct the
jury according to Kentucky Rule of Criminal Procedure (RCr) 9.57(1) .. The trial court's finding that' the continuance motion was procedurally deficient is
supported.by the record and there was no abuse of discretion in denying the
motion. Further, there was no reversible error when the trial court did not
issue ajury instruction pursuant to RCr 9.57(1). Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 3, 2016, Deputy Chase Marcum of the Lincoln County
Sheriffs Office was on patrol when he noticed a silver Hummer ("vehicle")
matching the description of a vehicle that had earlier been reported stolen. The
vehicle was driven °!JY Drury, with Maranda Conner as his passenger. Deputy
Marcum began to follow the vehicle to determine whether it was in fact the
stolen vehicle. As Deputy Marcum followed the vehicle, Drury began to speed
up. :Deputy Marcum initiated. his lights and siren, but Drury failed to stop.
The pursult continued for a few miles until Drury struck a tree. Believing that
the vehicle was disabled, Deputy Marcum exited his cruiser and began to
conduct a felony traffic stop. While Deputy Marcum was positioned between
his cruiser and the back of the vehicle, Drury backed. the vehicle toward the
officer. Deputy Marcum jumped out of the way and into a ditch to avoid being
hit. The vehicle fled the scene despite Deputy Marcum's commands to stop.
Deputy Marcum fired a couple of shots toward the vehicle's tires as
Drury drove away. Drury made it about a quarter mile down the road before
stopping again due to the shots fired at the tires. Deputy Marcum pulled his
cruiser next to the vehicle to pin the driver's door shut and prevent Drury from
fleeing, and then arrested Drury and Conner.
2 On September 26, 2016, Drury was indicted for receiving stolen property
over $10 ,000, first-degree fleeing or evading police, and first-degree wanton
endangerment. The trial was scheduled for mid-January. On January 13,
201 7, Drury filed a motion for continuance asserting that two witnesses who
allegedly had exculpatory information had not been subpoenaed. The trial
court denied the motion because it did not comply with RCr 9.04.
The trial proceeded as scheduled. The judge released the jury to
deliberate .and after approximately thirty minutes the jury sent a note to the
judge. At a bench conference with counsel, the judge stated that he planned to
remind the jury that it had all the information it was going to get and to read
and follow the instructions. After the judge addressed the jury in open court,
the jury returned approximately twenty minutes later with a guilty verdict on
all counts. Drury was sentenced to five years for fleeing or evading police, five
years for wanton endangerment, and ten years for receiving stolen property, all
to run consecutively for a total of twenty years.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for Continuance
Drury argues that the trial court erred by denying his motion for
continuance. Specifically, Drury contends .that the trial court's decision denied
him the opportunity to present a defense against the charges. Drury's motion
for continuance was based on an alleged inability to subpoena two witnesses
believed to have information pertaining to Drury's theory of defense for the
charge of receiving stolen property. RCr 9.04 states that "[i]f the motion [for 3 continuance] is based on the absence of a witness:; the affidavit must show
what facts the affiant believes _the witness will. prove, and not merely the effect
of such facts in evidence, and that the affiant believes them to be true."
Th·e motion for a contimiance was filed January 13, 2017, just a few
days before trial was scheduled to begin. Drury attached an affidavit of Sarah
Reed, an investigator in the Danville Public Defender's Office, that outlined the \ efforts to ser\re Samantha Denny and Pauline Gilpin on twci occasions. The .
affidavit stated that during both attempts Denny's apartment appeared to be
vacant, and that occupants in Gilpin's apartment explained that Gilpin was in
Lexington caring for a sick ·relative.
The trial court denied the mo~ion, stating that the defense had not
provided an affidavit detailing what counsel believed the absent witnesses
would prove as required by RCr 9.04 .. On the morning·of'tdal, Drury orally
renewed the motion for a continuance. Counsel cited Drury's right to present a
defense based on the Sixth and Fourteenth Amendments to the United States
Constitution and Sections Two and Eleven of the Kentucky Constitution.
Counsel further stated that the witnesses were material because they were /
present when the vehicle in question was loaned to Drury and could testify to
the fact that he had no reason to belieye it was stolen. Additionally, counsel
told the judge that she spoke to both witnesses on the phone, that one witness
appeared to be "dodging" her, and that the other witness's apartment was
vacant. Counsel did not know. how she could locate the second witness. The
4 judge denied the renewed motion for the same reasons stated in his previous
order.
A trial court's ruling on a motion for a continuance is within the sound
discretion of the trial court and is reviewed under an abuse of discretion
standard. Montgomery v. Commonwealth, 320 S.W.3d 28, 47 (Ky. 2010). "[A]
conviction will not be reversed for failure to grant a continuance unless that
discretion has beeri plainly abused and manifest injustice has resulted." , , ~ I Parker v. Commonwealth, 482 S.W.3d 394, 402 (Ky. 2016) (citations omitted).
Whether a continuance is appropriate depends on the facts and circumstances
of each case. Snodgrass v. Commonwealth, 814 S.W.2d S79, 581 (Ky. 1991),
overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.
2001).
In exercising its discretion on a motion for continuance, the trial court
should consider the following: "length of delay; previous continuances;
inconvenience to litigants, witnesses, counsel and the court; whether the delay
is purposeful or is caused by the accused; availability of other competent
counsel; complexity of the case; and whether denying the continuance will lead
to identifiable prejudice." Id. The factors most applicable to the case will be
discussed in turn.
Although Drury did not request a specific amount of time in his motion,
the length of delay would likely have been minor - just enough time to allow for
mote attempts to locate a~d serve the two witnesses. Additionally, the case
was only approximately three and a half months old when trial began.· There
5 was only one prior continuan.ce ordered by the court due to a conflict in the
trial court's schedule. As for 'inconvenience, any change in a trial date causes
so:tne inconvenience, so for this to be a determining factor there must be
substantial inconvenience. Eldred v. Commonwealth, 906 S.W.2d 694, 700 (Ky.
1994). When Drury's counsel orally renewed the motion for continuance on
the morning of trial, a jury pool was assembled, ready for voir dire, and the
Commonwealth was ready to proceed with its witnesses. While counsel did
provide the court with more information as to what the two missing witnesses
would reveal in their testimony, the information was not in the form of an
affidavit as required by RCr 9.04. There is nothing in the record to.suggest
that the request for delay was purposeful' or caused by. the accused. Finally,
the case was not complex .
. While Drury references all of the foregoing factors, the crux of his
argument is that the denial of the continuance resulted in identifiable·
prejudice. Drury points to Herp v. Commonwealth, 491 S.W.3d 507 (Ky. 2016),
to support his assertion. However, Herp is clearly distinguishable from the
pre~ent case. In Herp, on the morning of trial the Commonwealth moved to
amend all charges in the indictment to include another year in which the
alleged sexual crimes against a child may have occurred. Id. at 509. After the
amendment, counsel requested a week-long continuance to investigate the
whereabouts of his client and the victim during the newly-added year of
possible culpability. Id. at 512. After denial of the first motion, Herp's counsel
then requested a two-day continuance, which was also denied. Id.
6 In Herp, the Commonwealth~s late amendment to the indictment
drastically changed the scope ofthe defendant's culpability by adding another
year in which criminal activity may have occurred. Id. Additionally, in finding
that there was identifiable prejudice in the denial of the continuance, this
Court weighed the fact that the defense was requesting a two-day continuance
for a case in which the prosecution was deferred for over two decades. Id.
Justice required that Herp's counsel be afforded an opportunity to investigate
and provide effective assistance. Id.
In Drury's case, there was no late introduction of evidence or any drastic
change in the case that would require further investigation. He was not
blindsided on the morning of trial, a critical factor in Herp. Further, Drury was
indicted on September 26, 2016, and on October 14, 2016, the court scheduled
the trial for the middle of January. However, the defense investigator who
attempted to serve the two missing witqesses did not make the first service
attempt until January 11, 2017 -- approximately three months after the trial
date was set and a mere week before the scheduled trial. Drury's counsel had
adequate time to investigate and prepare a defense to a straightforward three-
count indictment issued nearly three and a half months prior.
Drury also argues that his case corresponds to Mills v. Commonwealth,
95 S.W.3d 838, 841 (Ky. 2003), wherein this Court determined that a
continuance should have been granted after the defense learned shortly before
trial that the Commonwealth had failed to disclose an officer's notes containing
a previously unknown eyewitness's identity. By contrast, in moving for a
7 continuance in this case, Drury did not allege that he had just become aware of
. the two missing witnesses' identities or aware of the information they allegedly
knew. There was no eve-of-trial development as in Mills.
Turning to the affidavit of investigator Reed, she outlined the attempts to
serve the witnesses and the information she obtained concerning their
respective residences. However, RCr 9.04 clearly states that the affidavit must
show what the witnesses would prove, and Reed's affidavit did not comply. As
our predecessor court stated in McFarland v. Commonwealth, l.
[t]here is nothing in the record to show that the affidavit complied with the requirements of RCr 9.04 with respect to. showing the materiality of the evidence expected to be obtained, that due diligence was used to obtain the evidence, the facts the affi:ant believed the witness would prove, and that the affiant believed those facts to be true.
473 S.W.2d 121 (Ky. 1971). ·While Reed's affidavit indicated that some
diligence was used in attempting to serve the witnesses, as a whole it was
procedurally deficient.
This Court has routinely upheld denial o~ motions for continuance that
fail to comply with the procedural requirements of RCr 9.04. E.g., Gray v.
Commonwealth, 203 S.W.3d 679, 689 (Ky. 2006) (no abuse of discretion found
in denial of continuance where counsel failed to make a proper RCr 9.04
motion establishing what facts the missing witness would prove); Hudson v.
Commonwealth, 202 S.W.3d 17, 23 (Ky. 2006) (no abuse of discretion where
appellant's motion failed to disclose expected witness testimony or materiality);
Pennington v. Commonwealth, 371 S.W.2d 478, 479 (Ky. 1963) (failure to file an
8 affidavit regarding missing witness deprived the court of any basis to determine
whether the absence of the witness was prejudicial); McFarland, 473 S.W.2d at
121 (no showing of the materiality of the missing testimony, that due diligence
was used to obtain the evidence, or the facts the witness would prove).
·Having considered Drury's 8:rguments and the record, we find no abuse
of discretion in the trial court's denial of Drury's motion for continuance.
II. The Trial Court Did Not Err in Its Instruction to the Jury During Their Deliberations
Drury next argues that reversible . error occurred when the- trial court I
failed to instruct the jury according to RCr 9.57(1). After approximately thirty .
minutes of deliberation, the jury sent a note to the judge that read: "Never
proved amount of hummer (sic). Can not (sic) Agree on Count l." The judge
held a bench conference with counsel and expressed his frustration that the I
jury was not following the court's i~structions. The judge stated that he
intended to tell the jury that it had received all the evidence it would receive
and that it was their duty to follow the instructions and deliberate. Defense
counsel asked whether it was an "Allen charge" situation, and in response the
judge stated that there are no Allen charges in Kentucky and that he would not
give the jury a dynamite charge. 1 In response, defense counsel said "okay."
1 "Prior to the adoption of RCr 9.57 ... the trial judges of this Commonwealth were afforded substantial discretion as to how to instruct a deadlocked jury, so long as the instruction did not attempt to coerce the jury or indicate the judge's own opinion as to the verdict. Most trial judges used the so-called 'Allen charge,' see Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) .... " Commonwealth v. Mitchell, 943 S.W.2d 625, 626 (Ky. 1997) (citations omitted).
9 While Drury's c~:mnsel expressed confusion with the court's refusal to
deliver an Allen charge, thejudge proceeded to outline what he intended to tell
the jury. After the judge stated his intentions, defense counsel again said
"okay." Before proceeding, the judge asked Drury's counsel and counsel for the
Commonwealth if they had any suggestions on what to do and no suggestions . \ \ were given.
At that point, the judge brought the jury back into the courtroom and
delivered the following statement:
Ladies and gentlemen, I have received from the bailiff what was purported to_ me to be a question. It is not a question. You have · received all of the evidence you are going to receive in connection with this case. You have received my instructions of law. You are . to read those instruetions carefully. You are to comply with my instructions and follow them and retire and deliberate in accordance with my instructions. Drury did riot objec_t to this jury instruction.
While formal exceptions are .unnecessary, "RCr 9.22 requires a party to
make 'known to the court the action he desires the court to take or his
objection to the action of the court."' Cash v. Commonwealth, 892 S.W.2d 292,
295 (Ky, 1995), quoting West v. Commonwealth, 780 S.W.2d 600, 602 (Ky.
1989). Since there was no objection, the issue is unpreserved and thus
reviewed for palpable error. RCr 10.26 ..
Palpable error review requires reversal when "manifest injustice ·has
resulted from the error.~ El~ry v. Commonwealth, 368 S.W.3d 78, 98 (Ky.
2012). In determining.whether there has been manifest injustice, the Court
focuses "on what happened and whether the defect is so manifest, fundamental
10 and unambiguous that it threatens the integrity of the judicial process." Martin
v. Commonwealth, 207 S.W.3d 1,. 5 (Ky. 2006).
RCr 9.57(1)2 outlines the elements which should be included in an
instruction to a deadlocked jury regarding the desirability of reaching a verdict.
Mitchell, 943 S.W.2d at 627. Generally, on review of a trial court's statements
to a deliberating jury, "[w]e must ultimately determine whether the trial court's
stateme:qt actually forces an agreement, or whether it merely fosters thorough
jury deliberation that results in an agreement." Gray v. Commonwealth, 480
S.W.3d 253, 272 (Ky. 2016). Here, our focus is somewhat different be.cause
Drury complains that the trial court erred in not giving the jury an instruction
pursuant to RCr 9.57(1). We disagree.
In Martin v. Commonwealth, 170'S.W.3d 374, 383 (Ky. 2005), the jury
wrote a note to the judge stating it "could not come to a unanimous v.ote" on
one of the charges and asked for further instruction. At that juncture, the jury
a court that it is unable to reach a verdict and 2 ( 1) If a jury reports to the court determines further deliberations may be useful; the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements: (a) in order to return a verdict, each juror must agree to that verdict; (b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors; (d) in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and (e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.
11 had been deliberating for less than an hour and it was the jury's first question
submitted to the court. Id. This Court held that "the trial judge properly
ordered the jury to return to continue deliberations" given the brief amount of · (
time the jury had spent in deliberations and that the jury was only divided, not
deadlocked. Id.
Drury's case is similar to Martin. The jury had deliberated for a brief
amount of time when it sent its first written question to the judge - less than
thirty minutes. Moreover, the jury did not indicate that it was deadlocked, only _, that it could not agree. Faced with a divided jury, the judge did not err in
concluding that an RCr . 9.57(1) instruction . was not necessary. '
Finally, RCr 9.57(1) provides that the trial court shall decide whether (
"further deliberations may be useful" based on the circums!ances apparent to
the judge at that point in time. Mitchell, 943 S.W.2d at 627. Given that the
jury in Drury's case had been deliberating for less than thirty minutes, it was
reasonable for the judge to determine that further deliberations could aid the
jury in reaching a decision and to give the previously quoted instruction. In
Mills v. Commonwealth, we held that "a response by the trial court to a
question by the jury after it has begun to deliberate only results in error if the
·comment is in fact coercive." 996 S.W.2d 473, 493 (Ky. 1999), overruled on
other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010). In its
statements to the jury after receiving the note, the trial court simply reiterated
the jury's duty and that it had all th,e evidence it would receive in the case.
These statements merely fostered deliberation that eventually resulted in a
12 verdict. Gray, 480 S.W.3d at 272. "[W]e have long held that statements which
merely impress upon the jury the propriety and importance of coming to an
agreement do not rise to the level of reversible error." Mitchell, 943 S.W.2d at
628.
The trial court did not err in responding to the jury's question. Because
there was no error, ~here certainly was no palpable error.
CONCLUSION
For the foregoing reasons, we affirm the trial court's conviction and
sentence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Samuel N. Potter Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear 1 Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Office of Criminal Appeals