KENNETH CAMPBELL V. COM.
CRIMINAL: No error for "all for one package deal"; juror was present but not answer roll call could serve; inoperability of firearm and sentence enhancement
OPINION OF THE COURT; VENTERS NOT SITTING
DATE RENDERED: 8/21/2008; 9/17/2008
THis was a criminal "matter of right" appeal by two defendants with SCOKY affirming the circuit court judgment.
Both appellants contend that their convictions and sentences must be reversed because (1) the trial court erred by failing to select a jury at random, (2) the trial court erred by failing to excuse a juror who knew a defense witness, and (3) the Commonwealth created error by offering all four co-defendants a package plea deal that required all four to plead guilty in order to make the deal.
Campbell contends separately that the trial court erroneously denied his motion for a directed verdict on the firearm enhancement of his drug offenses.
The trial court had trouble seating a jury because many potential jurors were excused for cause. Even after calling in four potential jurors who had initially been excused, the trial court still did not have enough potential jurors to try the case.
The trial court then noticed a man who had been sitting in the courtroom all day. Upon questioning the man, the trial court learned that the man had been summonsed for jury. duty; but he did not hear the clerk call his name during roil call. The man told the trial court he had remained in the courtroom all day, had taken the oath to answer truthfully the questions posed to the venire, and had heard all of the questions the court asked . The court allowed counsel for each co-defendant to question the man. This prospective juror’s responses revealed no bias or other reason why he should not serve, so the trial court put the man on the jury panel over Metten’s objection. The parties each exercised their peremptory strikes, leaving twelve jurors and one alternate to hear the case. Ultimately, one juror was excused for pending litigation against one of the defendants. So the man who had not heard his name called at roll call sat as a juror in the trial of this case.
SC found no error in placing the the potential jury who did not answer during roll call on panel. The trial court did not try and
manipulate the juror list; this juror (Juror S) was a potential juror who had already been summonsed for jury service that day, and his name was initially not put in the box as a result of innocent human error and not as a result of any intentional act to reserve him for last.
While conceding that they had no constitutional right to a plea bargain, the defendants content the "package plea deal" conditioned upon all defendants agreeing to the plea bargain was arbitrary and left the decision of whether they went to trial in the hands of other defendants. The SC was unaware of any authority that would support reversing a conviction entered against a defendant who did not plead guilty because of a co-defendant’s refusing a package plea deal. Since the Commonwealth was not required to offer any of the defendants a plea bargain, Metten and Campbell are not entitled to relief because of their codefendants’ refusal of this "all for one deal".
As to the question of whether the prosecution has the burden of proving the operability of a firearm in order to enhance sentences for drug offenses under KRS 218A.992 or whether the inoperability of the firearm is an affirmative defense that the defense has the burden of proving,
the plain language states a gun must be able to shoot bullets or other projectiles to qualify as a "firearm. SC agreed with the COA decison in Anold v. Commonwealth which held that in carrying concealed deadly weapons cases, the inoperability of the weapon is an affirmative defense that the defense had the burden of proving and the SC could find no reason to treat the alleged inoperability of a weapon differently in the context of firearm enhancement of drug convictions .
Because the operability of the firearm is not an element of the firearm enhancement, the inoperability of a firearm is an affirmative defense for which the defense has the burden of proof. So the total lack of proof as to operability does not entitle Campbell to a directed verdict on the firearm enhancement.
COA Decision: None. Appeal as matter of right from circuit court.
Digested by Michael Stevens