Michael P. Moore v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 14, 2022
• Docket: 2021 SC 0502
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 15, 2022 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0502-MR

MICHAEL P. MOORE APPELLANT

ON APPEAL FROM GREENUP CIRCUIT COURT V. HONORABLE BRIAN C. MCCLOUD, JUDGE NO. 19-CR-00102

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Greenup County jury convicted Michael P. Moore of attempted murder,

possession of a handgun by a convicted felon, possession of a firearm by a

convicted felon, and tampering with physical evidence. He was sentenced to a

total of forty years’ imprisonment. He appeals his conviction to this Court as a

matter of right. See KY. CONST. § 110(2)(b). After careful review of the record

and arguments of the parties, we affirm the Greenup Circuit Court.

I. BACKGROUND

In the evening of January 19, 2019, Michael Moore and his girlfriend,

Angela Miller, went out to dinner with friends. After dinner, they went to the

Laid Back Bar and Grill to have some drinks and listen to live music. When

they were ready to leave, Miller called her son-in-law to pick them up and drive them home, as both Miller and Moore had consumed too much alcohol to drive.

When Miller’s son-in-law arrived, Moore attempted to get into the car while

carrying an open can of beer. Miller’s son-in-law asked Moore not to bring the

open container into the car. Moore cursed at Miller’s son-in-law and then got

out of the car. Miller also got out of the car and began to argue with Moore.

Moore threw his beer in Miller’s face and then left the bar in Miller’s Durango.

Miller then left with her son-in-law.

While on the way back to their house, Miller and Moore spoke on the

phone and sent text messages to each other. Miller eventually told Moore to

gather his belongings and leave the house.

When Miller arrived at home, Moore was already there, and Miller’s

Durango was parked in front of the house. As Miller walked in the front door,

she heard loud crashing and thumping noises. She saw Moore standing at the

end of the hallway outside of their bedroom wearing only his underwear. She

also saw that Moore had punched holes in the walls and the doors. She

explained that Moore was “arguing and fighting with himself.” She repeatedly

asked him to leave or to lie down and to get away from her.

As they continued to argue, Miller went into the bedroom she shared

with Moore. Moore followed her. Then, Moore took Miller’s pink pistol out of her

dresser drawer. This pistol did not have a safety and was always fully loaded.

Moore first held the pistol under his chin and then placed it against Miller’s left

temple. Miller begged Moore to stop, and he eventually set down the pistol. He

2 then pulled down a ceiling fan and threw a chair into a dresser before leaving

the room.

Very shortly thereafter and before Miller could call for help, Moore

reentered the bedroom holding a shotgun. The shotgun had been stored in a

gun case in the guest bedroom. It was stored unloaded, and the ammunition

was in a separate ammunition case. While standing within just a few feet of

Miller and pointing the shotgun at her, Moore said, “If this is what you want,

this is what you get.” He then pumped the shotgun. Miller tried to turn away,

and Moore shot her in the lower right side of her back. Miller was able to get

past Moore and escaped to a neighbor’s house. The neighbor called 911.

Before first responders arrived on scene, Moore left the residence in

Miller’s Durango. Police eventually secured a search warrant for the house that

Miller and Moore shared. When police searched the house, they could not

locate Miller’s shotgun.

Moore was eventually apprehended in Ohio. When taken into custody, he

told police that he had thrown the shotgun off of a bridge and into a river.

Police searched but could not find the shotgun. When questioned by Kentucky

State Police troopers, Moore stated that the case was “cut and dry” and that if

he had wanted Miller to die, he would have killed her.

Moore proceeded to a trial by jury at which he was found guilty of

attempted murder, possession of a handgun by a convicted felon, possession of

a firearm by a convicted felon, and tampering with physical evidence. All of the

charges were tried together, and proof of Moore’s prior felony for failure to pay

3 child support was submitted to the jury in the form of a certified judgment. The

jury recommended a total sentence of forty years’ imprisonment, and the trial

court sentenced Moore consistently with that recommendation. Moore then

appealed to this Court.

II. ANALYSIS

Moore alleges that the trial court committed three errors. First, he alleges

that the trial court erred in failing to instruct the jury on voluntary

intoxication. Second, he alleges that the trial court erred in failing to trifurcate

his trial. Finally, he alleges that the trial court erred by admitting evidence of

the nature of Moore’s prior felony conviction during the guilt phase of the trial.

We discuss each alleged error in turn.

A. Jury Instructions

Moore’s first argument to this Court is that the trial court should have

instructed the jury on the defense of involuntary intoxication. Moore

acknowledges that he did not ask the trial court to give this instruction, and

thus this argument is not preserved for our review. Nevertheless, he requests

palpable error review under Kentucky Rule of Criminal Procedure (RCr) 10.26.

Under RCr 10.26,

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

However, RCr 9.54(2) states,

4 No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.

We have previously explained the interplay between these two rules as follows:

“RCr 9.54(2) bars palpable error review for unpreserved claims that the trial

court erred in the giving or the failure to give a specific instruction.” Martin v.

Commonwealth, 409 S.W.3d 340, 345 (Ky. 2013). Thus, we decline to review

Moore’s allegation that the trial court erred in failing to instruct the jury on

involuntary intoxication.

Moore points out that under RCr 9.54(1), it is “the duty of the court to

instruct the jury in writing on the law of the case.” He asserts that to the extent

our holding in Martin conflicts with the trial court’s duty under RCr 9.54(1),

Martin should be overruled in order to protect Moore’s right to a fair trial and

due process under the Kentucky and United States constitutions. We decline

Moore’s invitation to overrule our clearly established precedent on this issue.

B. Trifurcation

Moore next alleges that the trial court erred in failing to trifurcate his

trial in order to separate the guilt phase on the possession of a handgun by a

convicted felon and possession of a firearm by a convicted felon charges from

the guilt phase on his other charges. In essence, this is an argument that the

trial court erred in failing to sever the gun charges from the other charges.

Moore acknowledges he did not preserve this issue, as he never requested the

5 trial court sever the offenses. However, Moore requests this Court review the

issue for palpable error pursuant to RCr 10.26.

Generally, “[t]he decision to sever charges lies within the discretion of the

trial court and will be overturned only where an abuse of discretion has

occurred.” Debruler v. Commonwealth, 231 S.W.3d 752, 760 (Ky. 2007)

(citing Cannon v. Commonwealth, 777 S.W.2d 591, 596–97 (Ky. 1989)).

However, “this Court made clear that a firearm charge is required to be severed

from other charges to avoid the prejudice that necessarily arises from a jury

learning of a defendant’s otherwise inadmissible criminal history when

considering guilt or innocence on other charged offenses.” Wallace v.

Commonwealth, 478 S.W.3d 291, 303 (Ky. 2015) (citing Hubbard v.

Commonwealth, 633 S.W.2d 67, 68 (Ky. 1982)). Thus, Moore would have been

entitled to severance or trifurcation if he had sought it; however, he did not.

In relevant part, RCr 8.31 states,

If it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. A motion for such relief must be made before the jury is sworn or, if there is no jury, before any evidence is received.

(Emphasis added). As can be seen from the plain language of the rule, the

burden is on the defendant to request severance. In fact, we have previously

held that “[i]t was not necessary for the trial judge to sua sponte order separate

trials.” Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992). We have

6 repeatedly held that “[a] criminal defendant is not entitled to severance unless

there is a positive showing prior to trial that joinder would be unduly

prejudicial.” Id. (citations omitted); see also Cohron v. Commonwealth, 306

S.W.3d 489, 493 (Ky. 2010) (“A criminal defendant is not entitled to severance

unless he positively shows prior to trial that joinder would be unduly

prejudicial.”) (citation omitted). Because he failed to make a motion, Moore did

not make “a positive showing prior to trial that joinder would be unduly

prejudicial.” Id. Thus, the trial court did not err in failing to sever the charges.

C. Evidence of the Nature of Moore’s Prior Felony Conviction

Moore’s final argument to this Court is that the trial court erred by

admitting evidence of the nature of Moore’s prior felony conviction through

admission of a certified judgment during the guilt phase of the trial. The trial

court’s decision on this matter is reviewed for an abuse of discretion. See

Anderson v. Commonwealth, 281 S.W.3d 761, 766 (Ky. 2009). Moore

acknowledges this issue is not preserved and requests palpable error review

pursuant to RCr 10.26.

Moore asserts that the trial court should have sua sponte allowed him to

stipulate or admit that he had previously been convicted of a felony in order to

prevent the admission of evidence of the nature of that prior felony. In

Anderson v. Commonwealth, we adopted the holding set forth by the United

States Supreme Court in Old Chief v. United States, 519 U.S. 172 (1997). We

explained,

7 [U]pon request, a criminal defendant charged with being a felon in possession of a firearm may stipulate (with the Commonwealth’s agreement) or admit (if the Commonwealth does not agree) that the defendant has been previously convicted of a felony. Such a stipulation or admission would mean that the jury would simply be informed that the defendant was a convicted felon, for purposes of the felon in possession of a firearm charge, but would not be informed of the specifics of the defendant's previous felony conviction(s).

Anderson, 281 S.W.3d at 766. Moore concedes that he did not request to

stipulate or admit that he had previously been convicted of a felony as

Anderson requires. However, he urges this Court to “reconsider the

requirement that such a request is necessary under the circumstances

presented” because “[i]t is axiomatic that the jury’s knowledge of the

defendant’s prior felony is prejudicial during the guilt phase of the other

charges.” We decline to reconsider this requirement. Thus, because Moore did

not request to stipulate or admit that he had previously been convicted of a

felony, the trial court did not err in admitting the certified judgment of his prior

conviction that included the nature of the prior felony.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Greenup Circuit

Court.

Minton, C.J., Hughes, Keller, Lambert, Nickell and VanMeter, JJ., sitting.

All concur. Conley, J., not sitting.

8 COUNSEL FOR APPELLANT:

Jared Travis Bewley Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Joseph A. Beckett Assistant Attorney General