IMPORIT"AdNTNOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : OCTOBER 19, 2006
NOT TO BE PUBLISHED
osuprmr 490urf of
2005-SC-0886-MR
HARRY ROBERT McCROBIE, JR. APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ALLEN RAY BERTRAM, JUDGE
2003-CR-00108
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from a jury verdict which found McCrobie guilty of Burglary in the
First Degree, Assault in the First Degree, three counts of Wanton Endangerment in the
first degree and Kidnapping. The jury recommended a sentence of 12 years all to run
concurrent. The trial judge did not accept the jury decision and ordered the sentences
to run consecutive for a total of 24 years.
McCrobie raises seven issues for review: whether the waiver of the
disqualification of the trial judge was valid ; whether the trial judge committed error by
ordering the sentences to run consecutively after the jury recommended they run
concurrently ; whether his request for a continuance was improperly denied ; whether
improper victim impact evidence was allowed ; whether an expert witness who testified
in favor of McCrobie had his testimony improperly limited ; whether the failure to swear
in a bailiff was error; and, whether there was cumulative error.
McCrobie and his roommate had a history of a violent relationship . The
roommate finally moved out of the apartment and stayed with his sister, her husband
and two children in a nearby community . McCrobie appeared at the sister's home and
returned some mail and personal items to his former roommate. After receiving the
items, the roommate closed the front door. McCrobie then pulled out a large caliber
revolver and started shooting . The first shot went through the front door and struck the
sister resulting in life threatening arterial bleeding . She ultimately lost the use of her
hand and wrist despite emergency treatment . The roommate took his bleeding sister
and the two children and tried to hide in a bedroom . More shots were fired by McCrobie
who found the group in the bedroom and while brandishing the hand gun, ordered the
former roommate to leave with him or he would kill the sister and her children .
McCrobie forced his former roommate into a vehicle and the two drove away .
McCrobie continued to threaten the former roommate with the handgun . Finally, the
victim jumped from the moving vehicle and sought shelter in a nearby store . The police
arrived and arrested McCrobie ending the ordeal.
The trial judge ordered a mental health evaluation at the Kentucky Correctional
Psychiatric Center. McCrobie was diagnosed with disassociative amnesia, anxiety,
depressive disorder with post-traumatic stress syndrome, panic attacks and alcohol
abuse . The doctor did however find him to be clearly competent to stand trial because
he certainly possessed the cognitive ability to appreciate the nature and consequences
of the proceedings against him.
At arraignment, McCrobie, his attorney and the assistant Commonwealth
Attorney prosecuting the case all examined and signed a waiver provided by the Court .
The waiver indicates that each party knew that the trial judge's uncle was the
Commonwealth Attorney for that county yet acknowledged that the relationship was
immaterial to the proceedings . At a later hearing, the trial judge noted that prior to
signing the waiver, McCrobie received treatment at the state psychiatric facility for two
months and was represented by competent counsel .
The jury returned verdicts of guilty to the charges of assault in the first degree,
burglary in the first degree, kidnapping, and three counts of wanton endangerment in
the first degree . Although the jury had recommended concurrent sentences for all
charges, the court imposed consecutive sentences for the counts of assault in the first
degree and burglary in the first degree . This appeal followed .
I . Disqualification Waiver
McCrobie argues that it was error for the trial judge to refuse to disqualify himself
because he was the nephew of the Commonwealth Attorney who sat at counsel table
during the trial. He also contends that the waiver he signed while the proceedings were
postponed to determine his competency was invalid . We disagree .
A judge shall disqualify himself from any proceeding when he is related to any
party within a third degree of relationship. KRS 29A.01 5(2)(d)(2), SCR 4.300 Canon
(3)(E). The disqualification may be waived by the parties affected . Commonwealth v.
Carter, 702 S .W.2d 409 (Ky. 1985). McCrobie did sign a waiver along with his attorney
and the assistant Commonwealth Attorney . Normally that would be the end of the
matter.
McCrobie raised the issue of competency at trial . He also suggested that he was
not competent to understand what he was doing at the time he signed the waiver. Prior
to signing the waiver, McCrobie had been treated at the state psychiatric hospital for
two months . Subsequent to signing the waiver he was found to be competent to stand
trial . He consulted with his attorney prior to signing the waiver. His counsel additionally
signed the waiver. McCrobie does not suggest that his attorney was in any way
deficient . McCrobie repeatedly indicated to the trial judge that he wanted his
competency hearing delayed until other matters were finished . We can only conclude
that the decision to raise his competency to sign the waiver on the morning of trial was
trial .strategy in order to seek delay and was without merit. The waiver was valid . There
was no error .
11. Consecutive Term Of Sentence
McCrobie claims that the trial judge abused his discretion and violated his rights
by imposing consecutive sentences in disregard of the recommendation of the jury for
concurrent sentences . He complains that his right to remain silent was violated when
the trial judge allegedly used his silence against him at sentencing as a basis for
imposing consecutive sentences . We disagree .
The jury is required to recommend whether multiple sentences are to run
concurrent or consecutive . KRS 532 .055(2). That recommendation has significance,
meaning and importance. Lawson v. Commonwealth, 85 S.W.2d 571 (Ky. 2002). The
ultimate decision for sentencing, however, rests with the trial judge. Murphy v.
Commonwealth , 50 S .W.3d 173 (2001). That decision must, however, be reviewed to
see that it conforms to constitutional limitations .
Invocation of the right to remain silent may not be used against a defendant at
sentencing . See Mitchell v. United States , 526 U .S. 314 (1999). The trial judge did
indicate in the sentencing order that one factor considered was the absence of an
explanation of why the crimes occurred or how McCrobie's conduct came into effect.
An explanation could have been offered in many ways other than a defendant's
testimony.
McCrobie's defense was his mental health at the time of the crimes. Testimony
was presented that tried to explain why the crimes were committed and what caused
McCrobie to commit them . The remark in the sentencing order did not address his right
to remain silent but rather, acknowledged the complete failure of the defense to explain
the crimes and actions. There was no abuse of discretion . The trial judge did not rely
on impermissible criteria when imposing sentence. There was no error.
IIL. Denial Of Continuance
McCrobie maintains that it was error when the trial judge failed to exclude the
testimony of a prosecution witness or grant the motion by the defendant for a
continuance because of the last minute disclosure of this witness. We disagree .
At 4:30 p .m. on the eve of trial, the prosecutor sent a fax disclosing the identity of
a witness . That person testified that he had seen McCrobie leaving his house the
morning of the crimes carrying a hand gun. The prosecution used this testimony in an
effort to defeat McCrobie's defense that his mental state prevented him from
developing the requisite .intent to commit the crimes. McCrobie sought relief from the
trial judge by motion to exclude the witness or, in the alternative, to continue the trial in
order to allow .McCrobie to investigate the planned testimony. The trial judge denied
the request.
The prosecutor is not required to provide a witness list before trial. Lowe v.
Commonwealth , 712 S.W .2d 944 (Ky. 1986). McCrobie makes no claim that this
witness had any exculpatory bearing on his case requiring prior disclosure. See Brady
v. Maryland , 373 U.S. 83, 83 S .Ct. 1194, 10 L.Ed .2d 215 (1963).
We will only reverse a trial judge's decision regarding a continuance if that
decision was arbitrary, unreasonable, unfair or if not supported by legal principles .
Commonwealth v. English , 993 S .W.2d 941 (Ky. 1999). Although McCrobie disagrees
with the decision reached by the trial judge and provides his argument and views of
how he believes the trial judge should have ruled, he presents nothing to indicate that
the trial judge abused his discretion in any manner. Merely disagreeing with the
application of the factors used by the trial judge to determine whether to grant the
continuance, does not warrant a reversal . See Snodgrass v. Commonwealth , 814
S .W.2d 579 (Ky. 1991). There was no error.
IV. Improper Victim Impact Evidence
McCrobie argues that it was error to allow the prosecution to introduce
inflammatory victim impact evidence during the guilt phase of the trial . He asserts that
the grandmother improperly testified about the current well being of the children who
were present at the time of the shooting . We do not agree.
The testimony of the grandmother did not rise to the level of reversible error.
McCrobie never denied that he committed the criminal acts . The only question for the
jury was whether or not he was responsible for his actions . Here, the prosecutor did not
attempt to capitalize on the testimony from the grandmother. The testimony in question
was .not particularly emotional or essential to the effect that the children were
emotionally damaged by being present when their mother was shot and their uncle
kidnapped at gunpoint .
The grandmother testified during the guilt phase of the trial concerning the
current well-being of the children who were in the home when shots were fired . They
were the identified victims of two of the wanton endangerment charges. Victim impact
evidence is improper if introduced during the guilt phase of the trial. Ice v.
Commonwealth, 667 S.W .2d 671 (Ky. 1984), cent. denied, 469 U .S. 860 (1984).
Testimony intended to arouse sympathy for the victims is largely irrelevant to the issue
of guilt. See Bennett v. Commonwealth , 978 S .W.2d 322 (Ky. 1998). The testimony
should not have been admitted .
We are, however, required to analyze this issue from the view of harmless error .
RCr 9.24; Bennett id . at 324. The isolated comment did not prejudice the jury and deny
McCrobie a fair trial. The prosecutor did not dwell on the impact of the crimes on the
victims. A review of the record shows that this testimony, although error, was harmless .
McCrobie had a fair trial. See, id . at 326.
VI, Limited Expert Witness Testimony
McCrobie believes it was error when the trial judge refused to allow his treating
psychologist to testify about the global assessment function at the time of his admission
to KCPC . We disagree .
McCrobie called a doctor as a witness to testify about his medical condition on
release from the state psychiatric hospital . He then asked the witness to describe the
contents of a report of another doctor. The proposed testimony was clearly improper
hearsay. KRE 801(c). If McCrobie wanted the testimony admitted, he could have
called the other doctor as a witness. The hearsay testimony was properly excluded .
KRE 802. There was no error.
VII. Failure To Swear In A Bailiff
McCrobie next presents the fact that the bailiff was never sworn to perform his
duty of keeping the jurors together, prevent outside communication and to not interfere
with the process of the jury. See RCr 9 .68. This allegation of error is admittedly
unpreserved but it is reviewable under RCr 10.26. There is no error if an unsworn bailiff
performs his duty . Cole v. Commonwealth , 553 S.W .2d 468 (Ky. 1977). McCrobie
gives no argument that the bailiff failed to perform his duty. We will not presume error
when the burden remains on the complaining party to bring forth at a minimum, some
affirmative indication that the bailiff did not perform his duty. See Mason v.
Commonwealth , 463 S.W.2d 930 (Ky. 1971). There was no error.
VIII . Cumulative Error
Finding no significant error in the issues presented, we do not find cumulative
error which would require a reversal of this case. See Woodall v. Commonwealth , 63
S .W.2d 104 (Ky. 2001). The alleged cumulative errors were not preserved and do not
meet the standards of RCr 10 .26 .
McCrobie was not denied any state or federal constitutional right. He received a
fundamentally fair trial.
The judgment of conviction and sentence is affirmed .
Graves, Minton, Roach, Scott and Wintersheimer, JJ., concur. McAnulty, J .,
dissents by separate opinion and is joined by Lambert, C.J .
COUNSEL FOR APPELLANT :
Christopher N. Lasch
Yale Law School
Jerome N. Frank Legal Services
Organization
127 Wall Street
New Haven CT 06511
Michael L. Goodwin
Goodwin & Lasch, P.S .C.
6008 Brownsboro Park Blvd .
Louisville KY 40207
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Robert E . Prather
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : OCTOBER 19, 2006
NOT TO BE PUBLISHED
,*uyrnar (~vurf of ~irufurh~
2005-SC-0886-MR
HARRY ROBERT McCROBIE, JR. APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
V. HONORABLE ALLEN RAY BERTRAM, JUDGE
2003-CR-00108
COMMONWEALTH OF KENTUCKY APPELLEE
DISSENTING OPINION BY JUSTICE McANULTY
Respectfully, I .dissent from that part of the Majority's Opinion that concludes that
it was harmless error to admit victim impact evidence during the guilt phase of the trial .
There is a time for this evidence at trial, and that time is in the sentencing phase, after a
jury has found guilt. See KRS 532.055(2)(x)(7) . Not only was the victim impact
evidence impermissible in the guilt phase of the trial, but it was also irrelevant and
highly prejudicial . See KRE 401 . I would reverse and remand as I do not believe that
McCrobie received a fair trial in light of the precipitous admission of this evidence.
Lambert, C.J., joins this dissent .