Michael P. Moore v. Commonwealth of Kentucky ( 2022 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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NOT TO BE PUBLISHED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
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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
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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,
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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
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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
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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,
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[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.
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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
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