McDaniel v. Commonwealth

415 S.W.3d 643, 2013 WL 6834977, 2013 Ky. LEXIS 645
CourtKentucky Supreme Court
DecidedDecember 19, 2013
DocketNo. 2012-SC-000564-MR
StatusPublished
Cited by40 cases

This text of 415 S.W.3d 643 (McDaniel v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDaniel v. Commonwealth, 415 S.W.3d 643, 2013 WL 6834977, 2013 Ky. LEXIS 645 (Ky. 2013).

Opinions

Opinion of the Court by

Justice SCOTT.

A Kenton Circuit Court jury found Appellant, Alvin McDaniel, guilty of two counts of first-degree assault and of being a second-degree persistent felony offender (PFO). As a result, Appellant was sentenced to twenty-five years’ imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting that (1) the trial court erred in failing to strike three prospective jurors for cause, (2) the trial court erred in failing to provide limiting instructions to witness testimony, (3) the trial court erred in allowing the expert opinions of a witness not identified as an expert, (4) the Commonwealth improperly admitted evidence of other crimes, and (5) his right to due process was violated when he was convicted of first-degree assault after the Commonwealth failed to prove one of his victims suffered a “serious physical injury.” For the following reasons, we affirm one of Appellant’s convictions for first-degree assault, reverse the other, and remand the case to the trial court for further proceedings in accordance with this Opinion.

I. BACKGROUND

Appellant’s convictions arose from an altercation in which he shot Boysie Washington and Tanya Henderson. On the day in question, Washington and Henderson’s twelve-year-old daughter, Jane,1 got into a fight at school with Sally, the thirteen-year-old daughter of Iris Jennings (Appellant’s girlfriend). Following the fight, Sally went to her grandmother’s house to watch television. After Washington and Henderson learned Jane had been in a fight at school, they went out in search of Sally. This led them to knock on Sally’s grandmother’s door, which Sally answered. Washington then induced Sally into the street to fight Jane again in order to settle the girls’ rift from school. Washington, Henderson, and several other neighborhood spectators watched the fight in the street.

When Appellant learned of the street fight, he was angered by Washington’s provocation of the altercation and drove the streets looking for Washington. Upon locating Washington, Appellant exited his vehicle and approached him with a pistol. After a heated exchange, Appellant fired multiple shots, hitting Washington in the torso, thigh, and arm, and striking Henderson in the wrist.

[649]*649Following the shooting, Appellant was indicted by a Kenton County Grand Jury for first-degree assault of Washington, first-degree assault of Henderson, and second-degree PFO. The case proceeded to a jury trial, and the jury returned a verdict finding Appellant guilty of intentional first-degree assault of Washington and wanton first-degree assault of Henderson. The jury initially sentenced Appellant to twenty years’ imprisonment for first-degree assault of Washington and ten years’ imprisonment for first-degree assault of Henderson. After the Commonwealth presented evidence establishing Appellant’s prior convictions, the jury also found Appellant to be a second-degree PFO and recommended that his sentence be enhanced to twenty years for each assault to be served consecutively for a total of forty years’ imprisonment. At final sentencing, the trial court departed from the jury’s recommendation, reducing the total sentence to twenty-five years.

II. ANALYSIS

A. The Trial Court Did Not Commit Reversible Error by Failing to Strike Three Prospective Jurors for Cause

Appellant first argues that the trial court committed reversible error when it failed to strike three prospective jurors for cause. Specifically, Appellant asserts that the trial court’s error forced him to unnecessarily expend three peremptory strikes on jurors who should have been struck for cause, and that this forfeiture of peremptory strikes amounted to a violation of his right to be tried by a fair and impartial jury-

Appellant concedes that he failed to properly preserve the issue but requests our review for palpable error under RCr 10.26; KRE 103. Under the palpable error standard, an unpreserved error may be noticed on appeal only if the error is “palpable” and “affects the substantial rights of a party,” and even then relief is appropriate only “upon a determination that manifest injustice has resulted from the error.” RCr 10.26. “[W]hat a palpable error analysis ‘boils down to’ is whether the reviewing court believes there is a ‘substantial possibility’ that the result in the case would have been different without the error.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006) (citations omitted).

Appellant alleges that the trial court should have excluded jurors 63, 94, and 120 because each of them indicated in voir dire that they would give greater weight to a police officer’s testimony than a layperson’s. A thorough examination of the alleged biases of the three prospective jurors is unnecessary because each juror was eventually peremptorily struck by Appellant; therefore, there is not a “substantial possibility” that these particular jurors’ biases affected the result in the case as is required for a finding of palpable error. Id. The erroneous deprivation of a peremptory challenge can only affect the result of a case if another juror the defendant would have used a peremptory strike on is impaneled to the jury. See Gabbard, 297 S.W.3d at 854 (citing King v. Commonwealth, 276 S.W.3d 270, 279 (Ky.2009)) (explaining that a trial court’s erroneous failure to grant a strike for cause is nonprejudicial if no other juror the defendant would have used a strike on actually sits on the jury). If Appellant does not both exhaust his peremptory strikes and assert that he would have used one of his forfeited peremptory strikes on another prospective juror who actually sat on the jury, “there can be no reversible error because the ‘Appellant received the jury he wanted,’ and any error [was] ‘effectively cured.’ ” Id. Because Appellant has failed to assert that he would have peremptorily [650]*650struck another prospective juror, this issue was not preserved; and because none of the challenged jurors sat on the jury there is no basis for a finding of palpable error.

B. The Trial Court Did Not Commit Reversible Error by Failing to Provide Limiting Instructions

Appellant next argues that the trial court committed reversible error by failing to instruct the jury that certain portions of testimony could only be considered for a limited purpose. Specifically, Appellant claims the trial court should have instructed the jury that portions of Washington’s and Detective Corey Warner’s testimony referencing retaliation could only be considered for the limited purpose of explaining Washington’s prior inconsistent statements.

1. Testimony of Washington

During direct examination by the Commonwealth, Washington identified Appellant as the person who shot him. The assuredness of Washington’s identification of Appellant contrasted with his previously expressed lack of certainty at a photographic lineup conducted just a few days after the shooting. In order to defuse Appellant’s anticipated impeachment of Washington based on the uncertainty of his earlier identification, the Commonwealth, while still on direct, questioned Washington about his prior inconsistent statements during the lineup.

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Cite This Page — Counsel Stack

Bluebook (online)
415 S.W.3d 643, 2013 WL 6834977, 2013 Ky. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-commonwealth-ky-2013.