Al Kini v. Commonwealth

ISMAEEL K. AL KINI APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2014-SC-000171-MR

Supreme Court of Kentucky

SEPTEMBER 24, 2015

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

NO. 11-CR-000731

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Ismaeel Al Kini appeals as a matter of right from a Judgment of the Jefferson Circuit Court convicting him of attempted murder and first-degree burglary. Ky. Const. § 110(2)(b). Al Kini raises multiple issues on appeal. For the reasons explained herein, we now affirm the Jefferson Circuit Court.

RELEVANT FACTS

Ismaeel Al Kini and Rasha Al Shafey Hussien had a tumultuous marriage, punctuated by domestic abuse and abandonment, culminating in the institution of divorce proceedings in early 2010. On January 30, 2011, Al Kini traveled to his estranged wife's apartment under the guise of dropping off the couple's three children. Hussien¹ greeted the children and let them inside the apartment, locking the door behind her. The couple's custody arrangementhad been modified several days prior to allow Hussien joint custody of² the children. Mere minutes after the children arrived, Al Kini knocked on Hussien's door, explaining that their eldest son had forgotten his school clothes in Al Kini's car. Hussien did not open the door for Al Kini, but instead sent her son outside to retrieve the clothes. Al Kini then directed the boy to knock on the front door and tell his mother that he was alone, when in fact Al Kini waited by the doorway, out of view, armed with a kitchen knife. When Hussien opened the door, Al Kini forced his way into the apartment. He stabbed Hussien repeatedly in her chest and back. Hussien's hands and fingers were cut as she tried to wrest the knife from Al Kini. Neighbors heard Hussien and the children's screams and called 911. One neighbor followed Al Kini to his car and recorded his license plate number. Hussien's eldest son identified Al Kini as the perpetrator to a 9-1-1 operator.

Hussien was transported by ambulance to the emergency room at the University of Louisville Hospital. Treating physicians observed two penetrating wounds to her chest and back, as well as injuries to her right hand. She was intubated, and chest tubes were inserted to drain the blood from her wounds. She suffered a collapsed lung and an extreme drop in blood pressure, for which she was sedated and closely monitored. The injuries to her right hand requiredcorrective surgery and six-months of physical therapy. Despite these efforts, Hussien never regained full use of her right hand.

Meanwhile, Al Kini fled the city. The Louisville Police department launched a two-week search for Al Kini, to no avail. Law enforcement agencies in Pittsburgh and Detroit (where Al Kini formerly resided) aided in the search. Al Kini remained at large for a year, and was ultimately captured at a border crossing in Nogales, Arizona.

Al Kini's trial commenced in December, 2013. He called no witnesses and presented no evidence, aside from what was elicited during cross-examination of the Commonwealth's witnesses. The trial court directed a verdict in favor of Al Kini on a tampering with physical evidence charge. The jury found Al Kini guilty of criminal attempt to commit murder and burglary in the first degree, fixing his sentence at two consecutive twenty-year prison terms. The trial court sentenced Al Kini in accordance with the jury's recommendation. This appeal followed.

ANALYSIS

I. Trial Court Acted Within Its Discretion In Denying Al Kini's Fourth Motion For A Continuance.

Al Kini argues that the trial court abused its discretion in denying his motion for a continuance four days before his trial was set to begin. At that time, attorney Scott Drabenstadt moved to enter an appearance on behalf of Al Kini, having been retained as counsel just days before. Attorney Drabenstadt's motion was conditioned upon a request that the trial court grant a continuance. The Commonwealth objected, asserting that the request was adelay tactic and that Al Kini would suffer no prejudice should the trial continue as scheduled. The trial court agreed and denied the motion. Al Kini now asserts that this denial operated as a denial of his right to counsel of his own choosing in violation of his Sixth Amendment rights. For the reasons explained fully herein, we disagree.

Kentucky Rule of Criminal Procedure ("RCr") 9.04 vests trial courts with the authority to grant a continuance upon of showing of "sufficient cause." The trial court enjoys broad discretion in ruling on motions for continuances; so much so that this Court will reverse only when the trial court has plainly abused its discretion, resulting in manifest injustice to the moving party. Bartley v. Commonwealth, 400 S.W.3d 714, 733 (Ky. 2013) (internal citations omitted). Factors that a trial court may consider when ruling on a continuance motion include the "length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice." Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)). The unique circumstances of a case will dictate whether a continuance should be granted or denied. Id.

Having reviewed the record, we agree that the trial court did not abuse its discretion when it denied Al Kini's motion for a continuance. The attack occurred in January 2011 but Al Kini evaded capture for a year, and a furthertwenty-two months had elapsed before his trial finally began in December 2013. Attorney Michael Lemke had been appointed to represent Al Kini several months after his arraignment.³ During the lengthy pretrial period, Al Kini requested (and received) three continuances,⁴ including one on the very day trial was set to commence. This undoubtedly caused difficulty with witnesses who had to reschedule their appearances. Some of the witnesses required the assistance of a court interpreter, necessitating further schedule shifting and juggling of valuable court resources.

Had Al Kini desired to retain new counsel,⁵ he should have made such arrangements at the time of his third continuance request when Al Kini first complained of disagreements with Attorney Lemke over trial strategy. Finally, Al Kini has failed to produce any evidence of prejudice as a result of the trial court's denial of the continuance. The right to counsel of choice must be "balanced against the court's authority to control its own docket." United States v. Krzyske, 836 F.2d 1013, 1017 (6th Cir. 1988). Observing thesepretrial delays, it is clear that the trial court was entitled to exercise that authority here. Accordingly, we find no abuse of discretion.

II. Al Kini's Challenges to the Jury Selection Are Without Merit.

Al Kini raises three issues in connection with the jury selection. First, Al Kini asserts that the trial court erroneously deprived him of his opportunity to fairly inquire into the venire's potential national origin/religious bias. The second and third alleged errors involve the trial court's denial of two strikes for cause. We will address each challenge in turn.

A. The trial court did not prevent Al Kini from questioning the venire about cultural bias.

During voir dire, Al Kini's counsel asked the panel various questions about biases towards Muslims. One panel member responded that he understood that Muslims subordinate women. In response to that question, Al Kini's counsel asked another panel member if she believed that Al Kini "started in the hole" based on the notion that Muslim men treat women differently than men in other cultures treat women. She responded affirmatively. Counsel repeated the question, with minimal rephrasing, and some panel members indicated they agreed with the statement by raising their hands.

The Commonwealth objected and asked the trial court to address those panel members who responded affirmatively at the bench. The trial court indicated that it would consider the best approach after a short recess. After lunch and before the venire panel returned, the Commonwealth expressed concern that defense counsel's strange phrasing of his question likely influenced even those panel members who did not respond affirmatively. Theprosecutor asked the trial court to admonish the panel that Al Kini was innocent until proven guilty, and that his Muslim heritage had nothing to do with the trial. In response, defense counsel maintained that the trial court should not admonish the jury in such a way that would influence the panel to answer the questions in a particular way.

After the recess, the trial court addressed the entire panel, repeated defense counsel's question, and encouraged the panel to consider if any among them held the belief so strongly that they could not "overcome" the belief,⁶ regardless of what the evidence in the case supports. Defense counsel then continued to question the prospective jurors about cultural biases without any limitation by the trial court.

There was...