Commonwealth v. Watson

COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE v. BRENT MICHAEL WATSON APPELLEE/CROSS-APPELLANT

NO. 2018-CA-1272-MR

NO. 2018-CA-1340-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 23, 2020

NOT TO BE PUBLISHED

APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE A. C. MCKAY CHAUVIN, JUDGE

ACTION NO. 14-CR-000797

OPINION

AFFIRMING IN PART AND REVERSING IN PART

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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

JONES, JUDGE: Brent Michael Watson was convicted of one count of first-degree sexual abuse after a jury trial before the Jefferson Circuit Court. Watson entered into a plea agreement for a five-year sentence, which preserved his right to appeal. In his judgment of conviction and sentence, the trial court found that credit for his pretrial incarceration entitled Watson to immediate release. The Commonwealth appealed on the basis that the trial court had no authority to determine that Watson's custody credit was sufficient to discharge his five-year sentence. Watson cross-appealed as a matter of right claiming that the trial court erred by denying his motion to strike a juror for cause, denying his motion for a directed verdict, and refusing to instruct the jury on harassment with physical contact as a lesser-included offense.

Having reviewed the record in conjunction with all applicable legal authority, we find no error with respect to the issues raised in Watson's cross-appeal, and we affirm with respect to those issues. Under these circumstances, however, we must conclude that the trial court exceeded its authority in ordering Watson's immediate release and, therefore, reverse with respect to that issue.

I. BACKGROUND

Watson was arrested on March 20, 2014, after the victim's mother reported that Watson had touched the victim's vagina and Watson confessed to police. On March 27, 2014, Watson was indicted for having committed the offense of sexual abuse in the first-degree by subjecting the victim, a person less than twelve years of age, to sexual contact, a Class C felony. Kentucky Revised Statutes (KRS) 510.110. At the time of the incident the victim ("Victim"), Watson's cousin, was nine years old; Watson was nineteen.

Watson remained in custody, first in jail and then on home incarceration pursuant to the Louisville Metro Department of Corrections' Home Incarceration Program (HIP). See KRS 431.517(1). He was eligible to earn credit towards his maximum expiration date if convicted for the time he spent on HIP pursuant to KRS 532.120 and KRS 532.245(1). Watson maintained employment while on home incarceration and otherwise complied with all of the program's requirements.

On June 25, 2015, Watson accepted an offer to plead guilty as charged with a recommended sentence of five years of incarceration and submitted a motion to enter a guilty plea. This was the minimum incarceration available for a defendant who had committed a Class C felony. KRS 532.060(2)(c). By pleading guilty to a felony sexual offense under Chapter 510, Watson would be classified as a violent offender pursuant to KRS 439.3401(1)(f) and be ineligible for probation pursuant to KRS 532.047.

Initially, the trial court entered a judgment on Watson's guilty plea and set the matter for sentencing, ordering a presentence investigation (PSI). A comprehensive sexual offender presentence evaluation revealed that Watson scored similarly to individuals in the low risk range for reoffending and was amenable to treatment. The sentencing was repeatedly continued, but ultimately the trial court declined to accept the guilty plea based on its opinion that five yearswas too much time for the offense. The Commonwealth was unwilling to amend the charge and no other plea deal was offered. The Commonwealth sought appointment of a special judge, claiming the trial judge was biased, but the Kentucky Supreme Court denied the request. Ultimately the matter proceeded to a jury trial on April 23, 2018.

During jury selection, Watson asked for Juror 2128828 to be stricken for cause based on bias. After the trial court denied this request, Watson used a peremptory challenge to remove this juror and ultimately used all of his peremptory challenges.

After the Commonwealth's case in chief and at the conclusion of the case, Watson requested a directed verdict on the basis that the Commonwealth failed to establish he touched Victim for the purpose of sexual gratification. The trial court denied Watson's motion.

Watson proposed jury instructions on sexual abuse in the first degree and harassment with physical contact as a lesser-included offense. However, the trial court instructed the jury on sexual abuse in the first degree and criminal attempt to commit sexual abuse in the first degree.

After deliberating, on April 25, 2018, the jury found Watson guilty of sexual abuse in the first degree. The following day, before the sentencing phase of the trial commenced, Watson entered into a plea agreement with theCommonwealth for five years of incarceration, reserving his right to appeal any trial errors.

On May 10, 2018, Watson filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, arguing that the trial court erroneously failed to strike Juror 2128828 and failed to provide a jury instruction on harassment with physical contact. The trial court denied Watson's motion. On July 26, 2018, Watson's judgment of conviction and sentence was entered. Based on the credits Watson accumulated during home incarceration, the trial court ordered him immediately discharged from custody.

II. ANALYSIS

We first address Watson's arguments of trial error in his cross-appeal, beginning with the trial court's refusal to strike Juror 2128828 for cause. During jury selection, members of the panel were asked whether their reactions to the allegation of sexual abuse would make it difficult to be impartial. Juror 2128828 did not participate in this exchange but did respond when the panel was asked whether any of the jurors, their immediate families, or their close friends had ever been charged with a criminal offense, convicted, or arrested. Juror 2128828 stated that her husband raped her and committed domestic violence against her. She stated the system treated her fairly and the system also treated her husband fairly, although her husband could have gotten more time. She then laughed. Whenasked whether this experience would affect her ability to be fair, Juror 2128828 replied, "oh no, not at all." No further questions were asked of this juror.

Watson moved to strike Juror 2128828 for cause on the basis that a reasonable ground existed to believe that she could not be fair or impartial due to her involvement in the rape and domestic violence allegations against her husband. The trial court denied the motion, finding Juror 2128828's response did not indicate that she could not be impartial. Ultimately, Watson used one of his nine peremptory strikes to remove Juror 2128828 from the panel.

Watson used all of his peremptory strikes and argues that if the trial court had granted his motion to strike Juror 2128828, he would have stricken Juror 2128694, who ultimately served on the jury that convicted Watson. Watson properly preserved this issue by using a preemptory challenge to strike this juror and using all of his preemptory challenges. Morrison v. Commonwealth, 528 S.W.3d 896, 899 (Ky. 2017).

A defendant's right to an impartial jury is protected by the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution. Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013). "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." Kentucky Rules of Criminal Procedure (RCr) 9.36(1). "[T]rialcourts [are] to strike jurors any time reasonable questions about their impartiality persist and cannot be resolved conclusively." Wallace v. Commonwealth, 478 S.W.3d 291, 298 (Ky. 2015).

"We have long recognized that a determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination." Ordway, 391 S.W.3d at 781 (quoting Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008) (internal quotation marks omitted)). "[T]he trial court possesses considerable discretion [in determining whether to strike a juror for cause] and its view of the juror's demeanor and apparent candor must be duly considered." Moss v. Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997). "The court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007).

"[T]he mere fact that a prospective juror has been the victim of a crime similar to the crime being tried does not by itself imply a disqualifying bias. Additional evidence of bias is required." Brown v. Commonwealth, 313 S.W.3d 577, 598 (Ky. 2010).

Obvious factors bearing on the likelihood of bias are the similarity between the crimes, the length of time since the prospective juror's experience, and the degree of trauma the prospective juror suffered. It is the totality ofall the circumstances, however, and the prospective juror's responses that must inform the trial court's ruling.

Id. "[A] categorical disqualification [due to a juror's life experience] reflects a paternalistic approach to the issue that, while understandable, is simply wrong." Little v. Commonwealth, 422 S.W.3d 238, 244 (Ky. 2013).

While judges should never abdicate their responsibility to strike a juror when circumstances clearly require it, judges must make an individualized decision with respect to the qualifications of a specific juror, giving due deference to a credible juror's own assessment of how her

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