Daquantae Delane Smith v. Commonwealth of Kentucky ( 2023 )

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RENDERED: AUGUST 24, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0135-MR
DAQUANTAE DELANE SMITH APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE LUCY VANMETER, JUDGE
NO. 19-CR-00377 & 20-CR-00097
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Daquantae Smith (Smith) was convicted in Fayette Circuit Court of two
counts of being a convicted felon in possession of a handgun; two counts of
assault in the fourth degree; two counts of resisting arrest; one count of
criminal mischief in the third degree; and one count of disorderly conduct in
the second degree. Smith was further found to be persistent felony offender
(PFO) in the second degree. He now appeals his resulting twenty-year sentence
as a matter of right.1 Smith argues that the circuit court erred by granting the
Commonwealth’s motion to join two separate criminal indictments against him
for trial, and by allowing Smith’s charges of being a convicted felon in
1 Ky. Const. § 110.
possession of a handgun to be tried alongside his charges for assault in the
fourth degree, domestic violence. After review, we hold that Smith was not
unduly prejudiced by the joinder of his separate indictments for trial, and that
his counsel invited any alleged error in trying his felon in possession of a
handgun charges concomitantly with his domestic violence assault charges.
We accordingly affirm.
I. FACTS AND PROCEDURAL BACKGROUND
In January 2019, Paula Woolridge (Paula), had recently started a
relationship with Smith. Paula was pregnant with his child, and although they
were not living together, Smith was occasionally staying at Paula’s apartment.
On the night of January 5 into the morning hours of January 6, Smith was at
Paula’s apartment with his two young children. At around midnight that night,
Smith began going through Paula’s phone and accusing her of cheating on him
while questioning the unborn child’s paternity. He became angry and hit Paula
in the face with a closed fist multiple times, resulting in Paula having a busted
lip and a bruised and swollen eye. Smith also kicked Paula in the stomach and
told her he would kick the baby out of her and threw several items, including a
lit candle, at her. Smith’s outbursts and abuses continued intermittently from
midnight to sometime around 8 a.m. when Smith went to sleep. Paula
retrieved her phone and escaped from the ground floor apartment through a
window. Paula called a friend, who picked her up and convinced Paula to call
the police.
2
When officers arrived at the apartment complex, they spoke with Paula in
the parking lot. She explained what happened the night before and further told
the officers that Smith, a convicted felon, had guns in her apartment. When
the officers walked into Paula’s apartment, they saw Smith on a couch that was
partially blocking the front door. They attempted to speak with him about the
situation, but he refused to answer their questions. When the officers informed
him that he was under arrest and stood him up, the officers saw a handgun on
the couch where he had been sitting. Smith resisted the officers’ attempt to
arrest him, but they were ultimately able to subdue and handcuff him after a
brief struggle that began in the apartment and ended in the apartment
building’s breezeway. After Smith was removed from the scene, Paula escorted
the officers to a bedroom in the apartment and showed them three additional
guns—two handguns and a shotgun—under a mattress. Three of the guns
found in the apartment had previously been reported stolen.
In March 2019, Smith was indicted in Fayette Circuit Court, Third
Division, for the events that occurred on January 6 in case number 19-CR-377.
Initially, the charges in that indictment were the following counts:
Count 1: Convicted felon in possession of a handgun
Count 2: Convicted felon in possession of a firearm
Counts 3-5: Receiving stolen property, firearm
Count 6: Assault in the fourth degree, domestic violence, third or
greater offense within five years
Count 7: Resisting arrest
Count 8: Persistent felony offender in the second degree
3
On April 19, a month after Smith was indicted, he was released on bond. In
the months that followed, Smith and Paula continued to see each other, and on
November 18, 2019, a second domestic violence incident occurred between
them. Paula decided she wanted to end her relationship with Smith and went
to his apartment with her three small children to retrieve her belongings.
When Smith realized that Paula intended to leave him, he became angry and
would not allow her to leave the apartment. As she was trying to leave, he
slammed the front door on her forearm and tried to physically prevent her from
leaving. She was eventually able to escape to a neighboring apartment and call
911. By the time police arrived on scene minutes later, Smith was gone, and
they were unable to arrest him that day. No firearms were found in Smith’s
apartment that day, but the officers recovered a gun clip that was lying in a
closet in plain view.
On November 25, the police went back to Smith’s apartment to serve the
arrest warrant issued in relation to the November 18 incident. When the
officers knocked on his door, Smith came to the door in a t-shirt, nude from
the waist down. He told the officers he needed to put pants on, so the officers
followed him into the apartment. As Smith was walking towards the back of
the apartment, he went into a bedroom and tried to quickly shut the door.
Before he could shut the door, the officers saw a handgun on the bed in plain
sight. The officers prevented him from shutting the door and told him that he
was under arrest. After a struggle, the officers were able to get Smith into
handcuffs and put pants on him. Smith resisted the officers the entire time
4
they walked him to a cruiser and at one point “went dead weight” on them,
requiring the officers to carry him. During the time the officers were moving
Smith from his apartment to the cruiser, he began screaming for his mother
and “causing a scene” by telling the officers they had no right to arrest him.
Several people from the apartment complex started to form a crowd outside the
complex in response to the commotion. As they were placing Smith into the
cruiser, he threw his head back into the face of Officer James Chips (Officer
Chips), which busted his lip.
While sitting in the back of the cruiser, Smith was able to get his
handcuffed hands from behind his back to the front of his body. He then
began beating and kicking the cruiser’s window with such force the officers
were afraid he was going to break it. They therefore removed him from the
cruiser so they could place his ankles in shackles and re-cuff him behind his
back before transporting him. After they placed shackles on him, they removed
his handcuffs. Smith again resisted the officers and bit Officer Chips on the
left forearm during the struggle.
Three months later, in February 2020, Smith was indicted in relation to
the November 18 and November 25 incidents in Fayette Circuit Court, Eighth
Division, in case number 20-CR-97. The charges in that indictment were as
follows:
Count 1: Convicted felon in possession of a handgun
Count 2: Assault in the third degree of a police officer
Count 3: Criminal mischief in the second degree
5
Count 4: Resisting arrest
Count 5: Disorderly conduct in the first degree
Count 6: Assault in the fourth degree, domestic violence, third or
greater offense within five years
Count 7: Unlawful imprisonment in the second degree
Count 8: Persistent felony offender in the second degree
Two days after the 20-CR-97 indictment, the Commonwealth filed a
combined motion to transfer 20-CR-97 from the Eighth Division to the Third
Division of Fayette Circuit Court and to join 20-CR-97 with 19-CR-377 for trial.
Smith’s defense counsel filed a response objecting to the joinder. During a
hearing on the Commonwealth’s motion, it argued that the indictments could
be properly joined because the incidents that occurred on January 6, 2019,
and November 18, 2019, respectively, were domestic violence episodes
involving the same victim that occurred within a year of one another. And, that
the charges that stemmed from Smith’s conduct on November 25, 2019, had a
sufficient nexus to the November 18 incident because they occurred while the
police were attempting to serve an arrest warrant in connection with the
November 18 incident. Defense counsel argued that the January 6 incident
should be tried separately from the two November incidents, primarily arguing
that the two domestic violence episodes were distinguishable on their facts.
Counsel argued that they occurred at two different locations, that different
injuries were inflicted, and that they occurred eleven months apart from one
another.
6
Following the hearing on the Commonwealth’s motion and supplemental
briefing from both parties, the circuit court granted the Commonwealth’s
motion to transfer and join. The court found that the offenses that occurred on
November 18 and November 25 were properly joined under 20-CR-97 because
there was a sufficient nexus and logical relationship between them.
Specifically, the November 25 offenses occurred while officers were serving an
arrest warrant for the November 18 offenses. In addition, Smith’s actions in
fleeing the scene on November 18 and resisting arrest on November 25 were
relevant to demonstrate his consciousness of guilt. The court further found
that 19-CR-377 and 20-CR-97 could be properly joined for trial because both
cases involved offenses of the same or similar character and were committed
against the same victim. The court found that Smith would not be unduly
prejudiced by joining the two indictments because evidence of the January 6
assault would be admissible during a trial for the November 18 assault
pursuant to KRE2 404(b). Although the court acknowledged that it could not
divine what Smith’s defense would be prior to trial, it agreed with the
Commonwealth’s contention that evidence of the January 6 assault would be
relevant to establish motive, opportunity, intent, plan, or absence of mistake or
accident regarding the November 18 assault.
Subsequently, the Commonwealth moved to amend or sever several
charges from 19-CR-377 and 20-CR-97 as follows: (1) amend both fourth-
2 Kentucky Rule of Evidence.
7
degree assault counts to no longer include the enhancement of being a third
offense or greater within five years, making both of those counts a fourth-
degree assault under KRS 508.030 rather than KRS 508.032;3 (2) sever
Counts 3-5, receiving stolen property, from 19-CR-377; (3) sever Count 2,
third-degree assault (police officer), from 20-CR-97; (4) amend Count 3 from
20-CR-97, second-degree criminal mischief, to third-degree criminal mischief;
and (5) amend Count 5 from 20-CR-97, first-degree disorderly conduct, to
second-degree disorderly conduct. There being no objection from the defense,
the trial court accepted the modifications to the original indictments.
Significantly, because of the foregoing changes the only felony offenses
remaining in either indictment were the three counts of being a felon in
possession of a handgun/firearm; all of the remaining charges were
misdemeanors. During a pre-trial discussion between the trial court and
parties regarding how the trial would be conducted, the following exchange
occurred:
Court: But in the first phase when we’re having a trial on the
assault fourth and resisting arrest, the convicted felon in
possession of a firearm and a handgun, that’s a separate phase.
CW: 4 Well, I’m proposing to try the misdemeanors with the felon in
possession and I don’t think [defense counsel] has an objection to
that. I told him that it’s his decision.
Court: [Defense counsel]?
Defense: We don’t disagree.
3 The Commonwealth acknowledged that it made an error in making the
calculations required to enhance this offense under KRS 508.032(2).
4 Counsel for the Commonwealth.
8
Court: Okay, so the jury’s going to know he’s a convicted felon,
and everybody is okay with that?
Defense: Well, I think a part of the guilt phase for being a
convicted felon in possession of a handgun is the conviction.
Because these assaults are misdemeanors, he’s already served well
beyond the maximum he could ever get for a misdemeanor, so I
don’t think there is any prejudice or harm in that regard for a jury
to potentially max him out on a misdemeanor.
Court: I see, so the only real punishment he could get in this case
is on the convicted felon in possession of a handgun.
Defense: Yes.
Court: So it can’t harm him on the misdemeanors.
Defense: I don’t believe so.
With the foregoing changes made to the original indictments, Smith’s
trial proceeded on the following counts: Count 1: Convicted felon in possession
of a handgun (19-CR-377); Count 2: Convicted felon in possession of a firearm
(19-CR-377); Count 3: Convicted felon in possession of a firearm (20-CR-97);
Count 4: Fourth-degree assault (19-CR-377); Count 5: Fourth-degree assault
(20-CR-97); Count 6: Second-degree unlawful imprisonment (20-CR-97);
Count 7: Resisting arrest (19-CR-377); Count 8: Resisting arrest (20-CR-377);
Count 9: Third-degree criminal mischief (20-CR-97); Count 10: Second-degree
disorderly conduct (20-CR-97); and Count 11: Second-degree PFO. Because
Smith requested that the charges of being a felon in possession of a
handgun/firearm be tried during the guilt phase of his trial, the jury was
informed that he was a convicted felon but was not told what specific charges
he was previously convicted of.
9
Smith’s defense primarily focused on refuting the counts of being a felon
in possession of a handgun/firearm. He claimed that none of the guns found
in Paula’s apartment on January 6 were his. He further argued that Paula did
not escape through a window that day, but rather went out the front door after
planting the pistol found on the couch beneath Smith. The defense highlighted
that the guns were not tested for DNA, and no useable fingerprints were
recovered from them. Counsel did not provide an explanation as to how Paula
could have planted the gun found in Smith’s apartment on November 25, as
she was not present in the apartment that day.
As for the two counts of assault in the fourth degree, the defense
conceded that the jury would find Smith guilty of the January 6 incident; the
Commonwealth played an arresting officer’s body camera footage of Smith
admitting to causing Paula’s injuries on that date. However, the defense
asserted that Paula lied about the November 18 assault, noting that the
paramedic that examined her noted no abnormalities to her arm.
The jury ultimately found Smith guilty on all counts except for Count 2
(convicted felon in possession of a firearm under 19-CR-377) and Count 6
(unlawful imprisonment under 20-CR-97). The jury recommended the
minimum five-year sentence for both Count 1, felon in possession of a
handgun, and Count 3, felon in possession of a firearm. Following the guilt
phase, the jury found Smith guilty of being a second-degree PFO which
enhanced his sentences for Count 1 and Count 3 to ten years each. In
10
accordance with KRS 533.060(3), the court ruled that those sentences had to
run consecutively for a total of twenty years.5
Additional facts are discussed below as necessary.
II. ANALYSIS
Smith raises two alleged errors before this Court. He first argues that
the trial court erred by granting the Commonwealth’s motion to join 19-CR-377
and 20-CR-97 for trial. Second, he asserts that the trial court erred by not sua
sponte severing his charges of being a convicted felon in possession of a
handgun and firearm from his other charges for the purposes of trial. Finding
no error, we affirm.
A. The trial court did not abuse its discretion by granting the
Commonwealth’s motion to join 19-CR-377 and 20-CR-97 for trial.
Smith first argues that the trial court erred by granting the
Commonwealth’s motion to join 19-CR-377 and 20-CR-97 for trial.6 Trial
courts have broad discretion when ruling on a motion to join separate
indictments for the purposes of trial, and this Court will not disturb such a
ruling absent an abuse of discretion.7 “The test for abuse of discretion is
5 The jury’s recommendation for the remaining misdemeanor convictions were
as follows: Count 4: twelve months, Count 5: ninety days, Count 7: ninety days, Count
8: six months, Count 9: $250 fine, and Count 10: one day.
6 This issue was preserved for our review by defense counsel’s written and
verbal objections to the Commonwealth’s motion. See Kentucky Rule of Criminal
Procedure (RCr) 9.22.
7 See, e.g., Garrett v. Commonwealth, 534 S.W.3d 217, 223 (Ky. 2017).
11
whether the trial judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”8
The statutes that govern this issue are RCr 9.12, RCr 6.18, and RCr
8.31. RCr 9.12 provides that a court may order two or more indictments to be
tried together “if the offenses . . . could have been joined in a single
indictment.” In turn, RCr 6.18 states that two or more offenses “may be
charged in the same indictment . . . if the offenses are of the same or similar
character or are based on the same acts or transactions connected together or
constituting parts of a common scheme or plan.” Additionally, this Court has
stated that
to justify joining separate offenses in a single trial, there must be a
sufficient nexus between or among them. The required nexus
must arise from a logical relationship between the crimes, some
indication that they arose one from the other or otherwise in the
course of a single act or transaction, or that they both arose as
parts of a common scheme or plan.9
RCr 8.31 is the antithesis of RCr 9.12 and RCr 6.18 in that it mandates
severance of charges that are otherwise properly joined “[i]f it appears that a
defendant or the Commonwealth is or will be prejudiced by a joinder of
offenses[.]” In this vein,
[b]ecause a certain degree of prejudice is inherent in the joinder of
offenses, as it is in any indictment, this Court has explained that
the “prejudice” calling for severance or other relief under [RCr
8.31]10 is “undue prejudice,” i.e., prejudice that goes beyond the
8 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
9 Cherry v. Commonwealth, 458 S.W.3d 787, 794 (Ky. 2015) (internal citations
and quotation marks omitted).
10 RCr 8.31 was formerly codified as RCr 9.16.
12
inherent prejudice to that which is unnecessary and
unreasonable.11
Smith argues before this Court that the two indictments should not have
been tried together because the January 6 and November 18 assaults were not
of the same or similar character. In doing so, he attempts to distinguish the
two assaults on their facts. He argues that the motive for the January 6 attack
was a suspicion that Paula was cheating on him, while the November 18 attack
was motivated by Paula’s desire to leave the relationship; that the attacks took
place almost eleven months apart; and that the injuries inflicted to Paula were
different.
We disagree and hold that the circuit court did not abuse its discretion
by finding that the offenses committed on January 6 and November 18 were
properly joined under RCr 6.18 and RCr 9.12. The January 6 and November
18 assaults were both domestic violence12 assaults committed against the
same victim, within a residence, and in the presence of small children.
Additionally, during both assaults Smith attempted to prevent Paula from
leaving, and following both assaults Paula fled to a different location before
calling for help.
11 Whaley v. Commonwealth, 567 S.W.3d 576, 583 (Ky. 2019) (quoting Peacher
v. Commonwealth, 391 S.W.3d 821, 838 (Ky. 2013)).
12 KRS 403.720(2)(a) defines domestic violence and abuse, in relevant part, as
“[p]hysical injury, serious physical injury or the infliction of fear of imminent physical
injury, serious physical injury, sexual abuse, strangulation, or assault between family
members or members of an unmarried couple[.]”
13
Notwithstanding our agreement with the trial court, even assuming
arguendo that the trial court abused its discretion by joining Smith’s separate
indictments for trial, he is not entitled to relief absent a showing that he was
unduly prejudiced by said joinder.13 “The primary test for determining if the
consolidation of different crimes for a single trial creates undue prejudice is
whether evidence necessary to prove each offense would have been admissible
in a separate trial of the other.”14 KRE 404(b) is the guiding statute for this
inquiry, though this Court has previously stated that a failure to sever in
violation of KRE 404(b) may still be considered harmless error if the evidence of
guilt is otherwise overwhelming.15
KRE 404(b) directs that evidence of a defendant’s other crimes, wrongs,
or acts are inadmissible to prove a defendant’s character “in order to show
action in conformity therewith.” However, evidence of other crimes, wrongs, or
acts may be admissible
13 Montgomery v. Commonwealth, 320 S.W.3d 28, 35–36 (Ky. 2010) (“Even
assuming the trial court abused its discretion by joining those offenses, Montgomery is
not entitled to relief unless he was prejudiced by the improper joinder.”).
14 Elam v. Commonwealth, 500 S.W.3d 818, 824 (Ky. 2016).
15 Peacher, 391 S.W.3d at 839 (“[W]hile we have focused on mutual
admissibility as an important factor in the prejudice analysis, mutual admissibility is
not, by itself, determinative. United States v. Cardwell, 433 F.3d 378 (4th Cir.2005).
Where there is a lack of mutual admissibility, it could be that the trial court's having
admonished the jury to compartmentalize the evidence sufficed to neutralize the KRE
404(b) concerns, id., or, even absent such an admonition, it could be that the failure
to sever, in effect a KRE 404(b) error, was harmless under our harmless error
standards. See Wiley v. Commonwealth, 348 S.W.3d 570 (Ky.2010) (finding KRE
404(b) error harmless in light of overwhelming admissible evidence supporting the
conviction)[.]”).
14
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party.16
With this standard in mind, we hold that the trial court did not abuse its
discretion by finding that evidence of the January 6 assault would have been
admissible during a trial for the November 18 assault. This Court has stated
numerous times that “evidence of similar acts perpetrated against the same
victim are almost always admissible” under KRE 404(b).17 Moreover, at trial
Smith conceded he was guilty of the January 6 assault but argued that Paula
fabricated the November 18 assault. Evidence of the January 6 assault would
have therefore been admissible at a trial for the November 18 assault to refute
Smith’s defense that Paula lied about it.
As for the weapons charges, Smith denied owning any of the guns found
in Paula’s apartment on January 6 and argued to the jury that she planted
them to frame him. Consequently, evidence that police recovered a gun from
his apartment on November 25 would have been admissible at a trial for the
January 6 weapons offenses: Paula was not present in Smith’s apartment on
November 25 and the gun was on his bed in plain sight. Evidence of the gun
found on November 25 was therefore relevant and probative to prove that Paula
16 KRE 404(b)(1)-(2).
17 See, e.g., Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008).
15
did not frame Smith on January 6 and that the guns found on both dates did
in fact belong to him.
Tellingly, Smith’s argument to this Court fails to articulate how the
joinder of his indictments resulted in undue prejudice to him. We also note
that the jury found him not guilty of one count of being a convicted felon in
possession of a firearm and one count of unlawful imprisonment. And, while
the jury found Smith guilty of the two remaining weapons offenses, it initially
recommended the minimum sentence of five years for each of those counts.
Based on the foregoing, we hold that no undue prejudice resulted from joining
19-CR-377 and 20-CR-97 and affirm.
B. Smith invited any error committed in trying his charges of felon in
possession of a handgun and felon in possession of a firearm alongside
his domestic violence assault charges.
For his second assertion of error, Smith contends that the trial court
reversibly erred by allowing his three charges of being a convicted felon in
possession of a handgun/firearm to be tried in a single guilt phase alongside
his two charges for assault in the fourth degree, domestic violence. He argues
under Wallace v. Commonwealth18 and Hubbard v. Commonwealth,19 that the
trial court was required to try his weapons charges separately. He contends
that even though his trial counsel requested to try the weapons charges in the
same guilt phase as his assault charges, the trial court was required by RCr
8.31 to sua sponte reject defense counsel’s decision and try the weapons
18 478 S.W.3d 291 (Ky. 2015).
19 633 S.W.2d 67 (Ky. 1982).
16
charges separately. While the respective holdings in Hubbard and Wallace
remain sound, we hold that under the particular facts of this case Smith’s
counsel waived his ability to raise this issue on appeal by inviting this alleged
error.
In Hubbard, the defendant was charged with burglary in the third degree,
theft by unlawful taking, felon in possession of a handgun, and being a first-
degree PFO.20 Prior to trial, the defendant moved to have the charge of felon in
possession of a handgun severed from the other charges, but the trial court
denied the motion.21 During the trial’s guilt phase, the Commonwealth
presented evidence that the defendant had been previously convicted of third-
degree burglary twice.22 He was found guilty on all charges except for the
charge of being a felon in possession of a handgun.23 This Court reversed and
remanded for a new trial.24 It reasoned that
[RCr 8.31] provides that if it appears that either the
Commonwealth or the defendant will be prejudiced by a joint trial
of separate offenses they shall be tried separately. This case is a
perfect example of when a severance should be granted. The two-
stage proceeding in persistent felony-offender cases was designed
for the specific purpose of obviating the prejudice that necessarily
results from a jury's knowledge of previous convictions while it is
weighing the guilt or innocence of a defendant on another charge.
Cf. KRS 532.080(1), enacted in 1974. Such evidence is no longer
relevant or competent during the guilt phase of a bifurcated trial
unless, of course, it should become relevant for impeachment
purposes. Here the jury acquitted Hubbard of possessing the gun,
20 Id. at 67.
21 Id. at 68
22 Id.
23 Id. at 67.
24 Id. at 68.
17
but in considering his guilt or innocence of the burglary and theft
the jurors had been made aware of his previous record.25
Several decades after Hubbard, this Court rendered Wallace. In that
case, the defendant used a handgun during the commission of a series of
robberies and was charged with five counts of first-degree robbery and one
count of being a felon in possession of a handgun.26 The trial court entered a
pre-trial order severing the felon in possession of a handgun charge from the
other charges.27 But, instead of holding a separate trial for the handgun
offense, the trial court opted to “trifurcate” the trial.28 During the first phase,
the jury considered evidence solely concerning the robbery charges.29 In the
second phase it heard evidence establishing that the defendant was a convicted
felon in possession of a handgun, and the final step was a consolidated
sentencing phase.30
On appeal, the defendant argued under Hubbard and RCr 8.31 that the
trial court abused its discretion by not ordering a separate trial for the felon in
possession of a handgun charge.31 As a matter of first impression, this Court
approved of the trifurcated proceedings.32 The Wallace Court acknowledged
25 Id.
26 Id. at 293-94.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id. at 302.
32 Id.
18
that a defendant would be prejudiced if, during the second phase of a
trifurcated trial, the jury heard evidence of a felon in possession of a handgun
charge that was not mutually admissible during a trial for the charges
adjudicated during the first phase.33 However, because Wallace had used a
handgun during the commission of the underlying offenses, that evidence was
inextricably intertwined with the evidence of the robberies and no prejudice
resulted.34 The Court accordingly held that
trying the robbery charges and severed charge of possession of a
handgun by a convicted felon in one trial with a bifurcated guilt
phase followed by a consolidated penalty phase is not an inherently
inappropriate means of complying with the purposes and
requirements of Criminal Rule [8.31] and Hubbard[.] This
procedure is only inappropriate if separate trials are necessarily
required to avoid prejudice reciprocating between otherwise
properly joined separate counts. Clearly, when the handgun is
used in the underlying offense, there can be no such
reciprocation.35
To summarize, Hubbard held that RCr 8.31 required a charge of being a
felon in possession of a handgun/firearm to be severed from other criminal
charges. And Wallace held that a severed felon in possession of a
handgun/firearm charge could be tried using a trifurcated trial instead of a
separate trial if evidence of the handgun/firearm offense presented during the
second phase would have been admissible during a trial on the offenses
adjudicated in the first phase. Wallace is therefore inapplicable: Smith’s trial
33 Id. at 304.
34 Id.
35 Id. at 306.
19
was not trifurcated and the question before us is not whether the trial court
abused its discretion by holding a trifurcated trial.
Instead, the issue is whether this alleged error is properly before us
based on the equally well-established rule that “one cannot commit to an act. .
. and later complain on appeal that the trial court erred to his detriment,” or,
stated differently, that “[a] defendant cannot complain on appeal of alleged
errors invited or induced by himself[.]”36 Hubbard is accordingly not dispositive
either because the defendant in that case requested that the court sever the
count of being a felon in possession of a handgun and argued that he would
suffer prejudice if his motion was denied.37
In contrast, Smith’s trial counsel without question invited the alleged
error that Smith now argues entitles him to reversal and a new trial. During a
pre-trial discussion between the court and the parties regarding how the trial
would proceed, the trial court stated its intention to try the three charges of
being a felon in possession of a handgun/firearm using a bifurcated guilt
phase like the one approved of by Wallace. The Commonwealth replied that it
was proposing to try all the counts, except the PFO, in a single guilt phase but
conceded it would be defense counsel’s decision. Defense counsel not only
36 Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006). See also Tackett v.
Commonwealth, 445 S.W.3d 20 (Ky. 2014) (“[A] party cannot ask a trial court to do
something and, when the court does it, complain on appeal that the court erred.”);
Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011) (“Generally, a party is
estopped from asserting an invited error on appeal.”).
37 Hubbard, 633 S.W.2d at 68.
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stated he had no objection, but then stated twice that his client would not be
prejudiced by a single guilt phase trial:
Court: Okay, so the jury’s going to know he’s a convicted felon,
and everybody is okay with that?
Defense: Well I think a part of the guilt phase for being a convicted
felon in possession of a handgun is the conviction. Because these
assaults are misdemeanors, he’s already served well beyond the
maximum he could ever get for a misdemeanor, so I don’t think
there is any prejudice or harm in that regard for a jury to
potentially max him out on a misdemeanor.
Court: I see, so the only real punishment he could get in this case
is on the convicted felon in possession of a handgun.
Defense: Yes.
Court: So it can’t harm him on the misdemeanors.
Defense: I don’t believe so.
“Invited errors that amount to a waiver, i.e., invitations that reflect the party's
knowing relinquishment of a right, are not subject to appellate review.”38
Smith’s counsel rejected the trial court’s suggestion to try the weapons charges
separately. In addition, the defense used the evidence that Smith was a
convicted felon to bolster its defense that Paula framed him. Smith argued that
Paula knew Smith was not allowed to have handguns or firearms and therefore
lied to the police and told them that the guns in her apartment were his so that
he would be arrested. Based on the foregoing, we hold that Smith invited the
alleged error that the trial court erred by trying his felon in possession of a
38 Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011).
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handgun/firearm charges alongside his two charges of fourth-degree assault.
The issue is therefore not properly before us, and we decline to review it.39
III. CONCLUSION
For the foregoing reasons, we affirm.
Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ., sitting. All
concur. VanMeter, C.J., not sitting.
COUNSEL FOR APPELLANT:
Molly Mattingly
Kathleen Kallaher Schmidt
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Todd Dryden Ferguson
Robert Lee Baldridge
Perry Thomas Ryan
Assistant Attorney General
39 Because this error was invited, palpable error review under RCr 10.26 is not
appropriate. See id. at 439.
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