Hubert Umberto Johnson v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: September 20, 2007
• Docket: 2005 SC 000948
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : SEPTEMBER 20, 2007 NOT TO BE PUBLISHED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