Marcus Powell v. Commonwealth of Kentucky ( 2017 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE 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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 27, 2017
NOT TO BE PUBLISHED
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MARCUS POWELL APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE PATRICIA M SUMME, JUDGE
NO. 15-CR-00520-002
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit courtjury_convicted Marcus Rashe Powell of criminal attempt to
commit first-degree murder (principal or accomplice) and fixed his punishment ·
at ten years' imprisonment, enhanced to twenty years based on the jury further
finding Powell's status as a second-degree persistent felony offender. The trial
court entered judgment conforming to the jury's verdict and imposed a
sentence consistent with the jury's recommendation.
Powell appeals the judgment as a matter ofright.l He contends the trial
court erred by (1) failing to grant a directed verdict motion on all charges
except wanton endangerment because of a lack of evidence of the necessary
intent to commit the offense of murder, (2) improperly answering a question
1 Ky. Const. § 110(2).
from the jury in violation of the Sixth Amendment, and (3) improperly
instructing the jury in violation of his right to a unanimous verdict. Because
none of these alleged errors ·warrant reversal, we affirm the trial court's
judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Underlying Powell's conviction is a series of events that ultimately led to
shots being fired at the home of Justin and Jeannette Massengale.
For some period of time before the shooting incident, Powell shared a
residence with Justin and Jeannette Massengale, along with Christina Hughes
and her husband. The Massengales moved out of the shared residence, keeping .
their key to the residence. Powell and Christina Hughes, who developed a
romantic relationship, remained in the residence. After the Massengales
moved, the residence was burglarized three or four times. Powell and Hughes
suspected that the Massengales were responsible for these burglaries, so
Hughes, who owned a gun that was in her brother's possession, asked him to
return the gun to her.
On the day of the shooting, at the request of the Massengales, Jeanette
Massengale's younger brother Joseph "Jojo" Hemingway, returned to the
residence ostensibly to retrieve some items the Massengales claimed to have
left behind and used the Massengales' key. While Jojo was exiting the home,
Powell and Hughes arrived and demanded the key from JoJo, and he
acquiesced.
2
Later that day, Hughes and Powell allegedly discovered that some of
Powell's personal belongings were missing, and they suspected Jojo had taken
them. Powell and Hughes decided to confront Jojo. On the way, Hughes and
Powell picked up Hughes's relatives Jeremy "Worm" Griffen and Tequija "Kiki"
Brown. Powell and Hughes questioned Jojo about the burglaries and Griffen
and Brown assaulted him. After the assault, all four left for the Massengale
residence.
Meanwhile, Jojo called Jeanette and told her about the assault. She then
woke Justin to inform him of Jojo's assult. Justin then exited the back door to
check on Jojo when the first four shots were fired at the Massengale residence.
The police apprehended Powell and Hughes the same day as the shooting
incident and both were charged and brought to trial.
II. ANALYSIS.
A. Standard of Review.
Powell concedes that all of his alleged errors are unpreserved and he
requests palpable-error review of each. So we review each alleged error under
RCr 10.26,2 granting relief upon a showing of"palpable error."3 Palpable error
requires a showing that the alleged error affected the "substantial rights" of a
defendant, for whom relief may be granted "upon a determination that manifest
injustice has resulted from the error."4 To find manifest injustice, the reviewing
2 Kentucky Rules of Criminal Procedure 10.26.
s Id.
4 Id.
3
court must conclude that the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be "shocking or jurisprudentially
intolerable." 5 We analyze Powell's substantive arguments under this standard.
B. Powell was not .entitled to Directed Verdict.
When deciding a directed-verdict motion, the trial court must view all
evidence in a light favorable to the Commonwealth and determine whether
. there is sufficient evidence for a reasonabl.e jury to believe beyond a reasonable
· doubt that the defendant is guilty.6 In Commonwealth v. Benham we stated that
"[o]n appellate review, the test of a directed verdict is, if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal. "7 In applying this
standard, we reject Powell's argument.
Poyvell asserts that he was entitled to a directed verdict for conviction for
criminal attempt to commit first-degree murder (principal or accomplice). As is
noted in Perry v. Commonwealth, criminal attempt to commit murder requires
the intent to kilJ.B Powell rests his argument on the theory that the
Commonwealth failed to prove the intent necessary for conviction. Both parties
agree, failure to offer proof of intent would be fatal to the Commonwealth's
s Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
6 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).
1 Benham, 816 S.W.2d at 187.
a Perry v. Commonwealth, 839 S.W.2d 268,273 (Ky. 1992).
4
charge. Both parties further agree that intent can be inferred from the actions
of the defendant.9
Powell asserts that the Commonwealth 57 S.W.3d 787, 802 (Ky. 2001); Marshall v.
Commonwealth, 60 S.W.3d 513, 518 (Ky. 2001).
5
Justin's brother-in-law and a jury may fairly consider that fact, given the
violent nature of the crime with which Powell was charged.
Moreover, because this error is unpreserved, it must meet the high
standard of palpable error. It cannot be said that the trial court's directed-
verdict denial was error.
C. Powell's Sixth Amendment Rights were not violated.
Powell asserts that his Sixth Amendment rights were violated. He
combines two statements made to the jury to advance this positon.
First, Powell. notes that at the close of voir dire the trial court informed
the jury that "Not to follow the law would be a breach of your duty. It violates
the very system in which we are participating." Powell pairs this statement with.·
a response given by the trial court to a jury question during the penalty phase.
The jury, while deliberating the second-degree persistent felony offender
charge, submitted the following question to the trial court: "Ifvve believed·No. 5
A-E are all true, do we still have a choice to say Persistent Felony or is it a la,.v ·
aaeleF eaF Oath anel He eheiee maele is it our choice to say not guilty of a
Persistent Offender?" (Strikethrough in original.) With both parties in
agreement; the trial court responded to the jury's ques"tion by stating simply,
"You are to follow the instructions."
Powell asserts that the jury, looking to provide leniency to Powell, was
asking the trial court for guidance concerning jury nullification. Jury
nullification occurs when a jury believes that the elements to prove guilt have
6
been met for a certain offense, but decides nonetheless to acquit the defendant
of the charge. 10 And jury nullification is a constitutionally permissible option.11
Recognizing that jury nullification is constitutionally permissible, we
must address the narrower question before us: whether the trial court inhibited
the jury's right to nullification. Both parties encourage us to revisit our
'
analysis in Medley v. Commonwealth, but that is not necessary to dispose of
Powell's argument. 12 The trial court did not violate Powell's Sixth Amendment
rights.
First, we find no error with the judge's comment· after voir dire,
instructing the jury to follow the law and a failure to do so would be a breach of
their oath. We are persuaded by United States v. Avery, which stated,
"Although jurors may indeed have the power to ignore the law, their duty is to
apply the law as interpreted by the court and they should be so instructed."13
That is precisely what the trial court judge did; she simply instructed the jury
to apply the law, reminding them of their duty to do so.
10 United States v. Thomas, 116 F.3d 606, 614 (2nd Cir. 1997) ("'nullification,' a
practice whereby a juror votes in purposeful disregard of the evidence, defying the
court's instructions on the law.").
11 United States v. Leach, 623 F.2d 1337 (5th Cir. 1980) ("Jury nullification-the
right of a jury to acquit for whatever reasons even though the evidence supports a
conviction-is an important part of the jury trial system guaranteed by the
Constitution."); McGuire v. Commonwealth, 368 S.W.3d 100, 107 (Ky. 2012);
Commonwealth v. Durham, 57 S.W.3d 829, 838 (Ky. 2001).
12 Medley v. Commonwealth, 704 S.W.2d 190 (Ky. 1985).
13 United States v. Avery, 717 F.2d 1020, 1027 (6th Cir. 1983) (citing Sparf&
Hansen v. United States, 156 U.S. 51, (1895); United States v. Wiley, 503 F.2d 106 (8th
Cir. 1974) United States v. Dougherty, 473 F.2d 1113 (D.C. Cir: 1972); United States v.
Dellinger, 472 F.2d 340, 408 (7th Cir. 1972)).
7
Further, the judge's response to the jury during the penalty phase, even
in conjunction with her prior statement, does not persuade us that she violated
the jury's power of nullification. Both parties agreed to the response the trial
court gave to the jury. "A party generally may not invite error and then
complain thereof."14 When faced with the question, the trial court might have
simply responded with "I cannot answer the question," but the answer given
and agreed to by each party was not in the least inappropriate .. It appears
Powell is arguing that the trial court should have responded to the jury's
question by informing them of their rights to jury nullification, but a defendant
does not have such a right.is
Because we are satisfied that the trial court did not in any way interfere
with the jury's deliberation, we find no error.
D. There was no Error in the Jury Instructions.
Lastly, Powell asserts that the trial court erred in the jury instructions.
He asks us specifically to review the trial cdurt's jury instructions as it applies
to his conviction for attempt to commit first-degree murder (principal or
accomplice). Powell argues that the combination instructions employed by the
trial court denied him .his right to a unanimous verdict.
Powell attempts to further his argument by asserting for the first time on
appeal that failing to include Tequila Brown and Jeremy Griffen as potential
1:. See United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993); Bruce v.
Commonwealth, 581 S.W.2d 8, 9 (Ky. 1979).
1s See United States v. Carr, 424 F.3d 213, 219 (2nd Cir. 2005); Merced v.
McGrath, 426 F.3d 1076, 79 (9th Cir. 2005); United States v. Manning, 79 F.3d 212,
219 (1st Cir. 1996).
8
principals or accomplices was error, a notion that Powell's trial counsel
specifically rejected. Powell now asserts that individual jurors may have voted
to convict on the theory that Powell was the principal or accomplice to Griffen, ·
Brown, or Hughes, denying him his right to a unanimous verdict. Powell
further admits that he failed to object to the instruction that was given and he
failed to offer alternative instructions.
Under Instruction No. 5, the jury was given the opportunity to convict
Powell of either Criminal Attempt to Commit Murder if they believed he fired
the gun, or Complicity to Criminal Attempt to Commit Murder if they believed
that Hughes fired the gun. In the alternative, Instruction No. 6, the instruction
under which the jury convicted Powell, included instruction No. 5 by reference.
Instruction No. 6 provided that if the jury believed beyond a reasonable doubt
that Powell was guilty of "Criminal attempt to Commit Murder or Complicity to
Criminal Attempt to Commit Murder ... but you are unable to determine from
the evidence whether the defendant committed the crime as a Principal or as
Accomplice, then you will find him guilty of Criminal Attempt to Commit
Murder, Principal or Accomplice, under this instruction." Ultimately, unable to
determine whether Powell fired the gun, or merely assisted Hughes, the jury
convicted him under Instruction No. 6.
As the Commonwealth notes, combination jury instructions are not
prohibited in Kentucky, and they do not destroy a unanimous verdict.16
Further, "A verdict cannot be attacked as being non-unanimous·where both
16 Halvorsen v. Commonwealth, 730 S.W.2d 921, 925 (Ky: 1986).
9
theories are supported by sufficient evidence."17 Either theory in jury
Instruction No. 5 was reasonably supported by the evidence, allowing for a
proper conviction under Instruction No. 6.
The Commonwealth introduced sufficient evidence to support a finding
that either Powell or Hughes was the shooter. As to Powell, Justin testified that
Powell was the shooter and that he recognized him because of his familiarity
with Powell, having known hir:µ for five or six years. There was also testimony_
from Officer Ullrich that after arresting Hughes, she asked what the
consequences would be if she confessed to being the shooter, and indeed did
tell the police she was the shooter, only to recant later. Powell and Hughes
were in a romantic relationship, and it would not be unreasonable for the jury
.to find Hughes's inconsistent testimony as a way to avoid the fact that Powell
was the shooter. These facts could reasonably provide sufficient evidence upon
which ajury could rely to support the principal theory of Instruction No. 5.
Alternatively, the Commonwealth provided sufficient evidence that
Hughes herself was the shooter, and Powell was acting as an accomplice. The
gun used belonged to Hughes. Shortly before the shooting Hughes had asked
her brother to return it to her. And as noted above, Hughes originally told the
police she had been the shooter, later changing her story.1 8 These facts could
provide sufficient evidence for which a jury could support the accomplice
theory under Instruction No. 5.
11 Id. (citing Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978)).
1s Miller v. Commonwealth, 283 S.W.3d 690, 697 (Ky. 2009) ("It is the jury's
responsibility to weight the credibility of the evidence.").
10
Lastly, both parties recognize that Kentucky allows for inconsistent
verdicts.19 Even though Hughes was not convicted under an accomplice or
principal theory that does not suggest lack of unanimity in the verdict against
Powell. Powell admits himself that it is possible that the jury, showing leniency
to Hughes, acquitted her of being Powell's principal and/ or accomplice, while
at same time convicting Powell for the same offense.
Accordingly, because.either theory could reasonably support a jury
finding, we find no palpable error.
III. CONCLUSION.
For the foregoing reasons, the judgment is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Megan Kleinline
Assistant Attorney General
19 Commonwealth v. Harrell, 3 S.W.3d 349, 351 (Ky. 1999).
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