Marcus Powell v. Commonwealth of Kentucky

Court: Kentucky Supreme Court
Date filed: 2017-08-28
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Combined Opinion
               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE 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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
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                                                    RENDERED: APRIL 27, 2017
                                                       NOT TO BE PUBLISHED




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MARCUS POWELL                                                         APPELLANT


                    ON APPEAL FROM KENTON CIRCUIT COURT
V.                   HONORABLE PATRICIA M SUMME, JUDGE
                             NO. 15-CR-00520-002


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                      MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      A circuit courtjury_convicted Marcus Rashe Powell of criminal attempt to

commit first-degree murder (principal or accomplice) and fixed his punishment ·

at ten years' imprisonment, enhanced to twenty years based on the jury further

finding Powell's status as a second-degree persistent felony offender. The trial

court entered judgment conforming to the jury's verdict and imposed a

sentence consistent with the jury's recommendation.

      Powell appeals the judgment as a matter ofright.l He contends the trial

court erred by (1) failing to grant a directed verdict motion on all charges

except wanton endangerment because of a lack of evidence of the necessary

intent to commit the offense of murder, (2) improperly answering a question

      1   Ky. Const. § 110(2).
from the jury in violation of the Sixth Amendment, and (3) improperly

instructing the jury in violation of his right to a unanimous verdict. Because

none of these alleged errors ·warrant reversal, we affirm the trial court's

judgment.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
      Underlying Powell's conviction is a series of events that ultimately led to

shots being fired at the home of Justin and Jeannette Massengale.

      For some period of time before the shooting incident, Powell shared a

residence with Justin and Jeannette Massengale, along with Christina Hughes

and her husband. The Massengales moved out of the shared residence, keeping .

their key to the residence. Powell and Christina Hughes, who developed a

romantic relationship, remained in the residence. After the Massengales

moved, the residence was burglarized three or four times. Powell and Hughes

suspected that the Massengales were responsible for these burglaries, so

Hughes, who owned a gun that was in her brother's possession, asked him to

return the gun to her.

      On the day of the shooting, at the request of the Massengales, Jeanette

Massengale's younger brother Joseph "Jojo" Hemingway, returned to the

residence ostensibly to retrieve some items the Massengales claimed to have

left behind and used the Massengales' key. While Jojo was exiting the home,

Powell and Hughes arrived and demanded the key from JoJo, and he

acquiesced.



                                         2
      Later that day, Hughes and Powell allegedly discovered that some of

Powell's personal belongings were missing, and they suspected Jojo had taken

them. Powell and Hughes decided to confront Jojo. On the way, Hughes and

Powell picked up Hughes's relatives Jeremy "Worm" Griffen and Tequija "Kiki"

Brown. Powell and Hughes questioned Jojo about the burglaries and Griffen

and Brown assaulted him. After the assault, all four left for the Massengale

residence.

      Meanwhile, Jojo called Jeanette and told her about the assault. She then

woke Justin to inform him of Jojo's assult. Justin then exited the back door to

check on Jojo when the first four shots were fired at the Massengale residence.

      The police apprehended Powell and Hughes the same day as the shooting

incident and both were charged and brought to trial.

                                     II. ANALYSIS.
   A. Standard of Review.
      Powell concedes that all of his alleged errors are unpreserved and he

requests palpable-error review of each. So we review each alleged error under

RCr 10.26,2 granting relief upon a showing of"palpable error."3 Palpable error

requires a showing that the alleged error affected the "substantial rights" of a

defendant, for whom relief may be granted "upon a determination that manifest

injustice has resulted from the error."4 To find manifest injustice, the reviewing



      2   Kentucky Rules of Criminal Procedure 10.26.
      s Id.
      4   Id.

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 court must conclude that the error so seriously affected the fairness, integrity,

 or public reputation of the proceeding as to be "shocking or jurisprudentially

 intolerable." 5 We analyze Powell's substantive arguments under this standard.

    B. Powell was not .entitled to Directed Verdict.
       When deciding a directed-verdict motion, the trial court must view all

 evidence in a light favorable to the Commonwealth and determine whether

. there is sufficient evidence for a reasonabl.e jury to believe beyond a reasonable

· doubt that the defendant is guilty.6 In Commonwealth v. Benham we stated that

 "[o]n appellate review, the test of a directed verdict is, if under the evidence as a

 whole, it would be clearly unreasonable for a jury to find guilt, only then the

defendant is entitled to a directed verdict of acquittal. "7 In applying this

 standard, we reject Powell's argument.

       Poyvell asserts that he was entitled to a directed verdict for conviction for

criminal attempt to commit first-degree murder (principal or accomplice). As is

noted in Perry v. Commonwealth, criminal attempt to commit murder requires

the intent to kilJ.B Powell rests his argument on the theory that the

Commonwealth failed to prove the intent necessary for conviction. Both parties

agree, failure to offer proof of intent would be fatal to the Commonwealth's




       s   Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
     6 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).
       1 Benham, 816 S.W.2d at 187.
       a Perry v. Commonwealth, 839 S.W.2d 268,273 (Ky. 1992).

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charge. Both parties further agree that intent can be inferred from the actions

of the defendant.9

      Powell asserts that the Commonwealth