Jan. 27, 2012 COA Minutes — Nos. 84-115 (32 decisions; 5 published)

Kerr’s first argument addresses explanatory comments the trial court made to the jury prior to the start of the trial. These comments came directly after the court swore in the jury and were meant to orient the jury about how the trial would proceed; in other words, a “roadmap” of the proceedings. Kerr contends that these comments invaded the jury’s exclusive right to judge the facts. Both Kerr and the Commonwealth in their respective briefs provided the historical background addressing this issue of law. In his reply brief, Kerr requested that this matter be decided as either a matter of constitution law under § 7 of the Kentucky Constitution or under common law.

After Kerr filed his reply brief, the Supreme Court of Kentucky issued the opinion of Walker v. Commonwealth, 349 S.W.3d 307 (Ky. 2011), which became final on October 13, 2011. This case is the subject of Kerr’s motion for leave to file and notice of binding authority, which this Court has granted. We have reviewed this recent opinion and note that the trial judge in Walker is the same trial judge in the present case and that virtually identical comments were made in each case. Furthermore, the issue was not preserved in either case. Accordingly, we hold that the Supreme Court’s holding in Walker is determinative as to this issue, and we shall set forth the applicable portion of the opinion below:

Walker also contends that his trial was rendered unfair by comments the trial court made to the jury immediately prior to the attorneys’ opening statements. Having sworn in the jury, the trial court sought to orient it by providing what the court styled a “roadmap” of the proceedings. The court briefly described the phases of the trial and the roles of the participants. In explaining the jury’s role as the finder of fact, the court noted that the jury was the sole arbiter of the weight to be given the various pieces of evidence and the sole judge of the various witnesses’ credibility. The court then advised the jury that a witness’s credibility might be assessed by considering such factors as the witness’s interest or lack of interest in the outcome of the proceeding, the clarity of the witness’s recollection, the witness’s demeanor, his or her opportunity for observation, and the overall reasonableness of the witness’s testimony. Walker maintains that this latter advice purporting to tell the jury how to carry out its role amounted to a judicial invasion of the jury’s province and thus undermined the integrity of his trial. Again, Walker did not preserve this issue by means of a timely objection, and so our review is limited under RCr 10.26 to asking whether the “how to” portion of the trial court’s preamble was clearly improper, prejudiced Walker, and was so contrary to our ideal of fair and impartial proceedings as to be manifestly unjust. Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). Walker attempts to evade this strict standard by asserting that the trial court’s error was of constitutional magnitude—a violation of sections 7 and 11 of the Kentucky Constitution—but even alleged constitutional errors, if unpreserved, are subject to palpable error review. Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). Since the alleged error here does not meet the palpable error standard, it does not entitle Walker to relief.

As Walker correctly notes, in jury trials the practice in Kentucky, since statehood it appears, has been to disapprove judicial comment on the evidence and to leave exclusively to the jury the finding of facts. Allen v. Kopman, 32 Ky. 221, 2 Dana 221 (1834); Howard v. Coke, 46 Ky. 655, 7 B.Mon. 655 (1847); Cross v. Clark, 308 Ky. 18, 213 S.W.2d 443 (1948); Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009). Although we reject Walker’s suggestion that this practice of eschewing judicial comment is a constitutional requirement,2 it is nevertheless firmly rooted in ouR common law, as noted, and in our rules. RCr 9.54 and 9.58, for example, provide that the court shall decide and instruct on questions of law. Implicit in those provisions is the understanding that questions of fact are for the jury.

Notwithstanding, then, the broad discretion accorded trial courts to control the proceedings before them, Transit Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413 (Ky. 1992), and the obvious desirability of giving jurors at the outset of trial some idea of what to expect and what will be expected of them, we agree with Walker that the trial court’s instructions regarding how credibility is to be assessed strained, at least, the line judicial comment is not to breach. In Stewart v. Commonwealth, 9 Ky.Op. 793, 794 (1877), our predecessor Court considered an instruction the trial court had given at the close of proof, in which the jury were told that they were the judges of the credibility of the witnesses and the weight of the evidence, and in determining these questions they should take into consideration the demeanor of the witnesses on the witness stand, their intelligence or

2 Section 11 of our Constitution guarantees criminal defendants prosecuted by indictment or information “a speedy public trial by an impartial jury of the vicinage.” Judicial commentthreatens not the impartiality of the jury, however, which is sought to be assured by voir dire, but possibly the jury’s independence. Section 7 of our Constitution provides that “[t]he ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” The “ancient mode” of trial by jury is generally regarded as the common law practice in England, and particularly that practice immediately prior to the adoption of the federal constitution. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911). It so happens that the English common law judges regularly commented on the evidence, even to the extent of offering their opinions to the jury as to weight and credibility. Renee Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 Wm. & Mary L.Rev. 195 (Oct. 2000). A plausible argument can be made, therefore, that far from prohibiting judicial comment, Section 7 guarantees it. Robert O. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky. L.J. 121 (1966–67). Neither our predecessor Court nor this one, however, has ever read the constitutional provisions as dictating the details of jury practice beyond the requirements, in felony cases, that the jury consist of twelve persons and that its verdict be unanimous. Short v. Commonwealth, 519 S.W.2d 828 (Ky. 1975) (quoting from Wendling, supra). But see Lucas v. Commonwealth, 118 Ky. 818, 82 S.W. 440 (1904) (holding that the court may not direct a verdict of guilty in a criminal case and opining that rules under the old Criminal Code assigning matters of law to the court and matters of fact to the jury were in furtherance of Section 7). We decline to depart from that reading here. [Footnote 1 in original.]

want of intelligence, the relation to or interest in the prosecution or defense, the opportunities or want of opportunities of knowing the facts about which they testified, and that by these tests, and from all the facts and circumstances allowed to go into evidence, they should give to the evidence such weight as they might believe it entitled to.

Although not faulting this instruction as an incorrect statement of the law, the Court nevertheless reversed the appellant’s murder conviction because by specifying factors the jury was to consider the instruction risked emphasizing certain items of evidence and suggesting to the jury the court’s attitude toward certain witnesses. The “safer and a better practice,” the Court concluded, was “to withhold instructions upon matters relating to the credibility of witnesses and the weight of evidence, or the rules by which the jury should be governed in passing upon either.” Stewart, 9 Ky.Op. at 795.

Similarly, in Barnett v. Commonwealth, 84 Ky. 449, 1 S.W. 722 (1886), the Court addressed an instruction providing that [t]he jury are the sole judges for themselves of the weight of the testimony and credibility of the witnesses, and may attach such weight to any and all parts thereof as they may think proper, and if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper, disregard the entire testimony of such witness or witnesses.

Barnett, 1 S.W. at 723. “Theoretically, this is all true,” the Court allowed, “and yet this Court has repeatedly condemned such an instruction, because it in effect invades the province of the jury.” Id.