MATTHEW M. SPENCER APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 11-CR-001192
BRIEFS FOR APPELLANT: J. David Niehaus Office of the Louisville Metro Public Defender Louisville, Kentucky.
BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky.
BEFORE: CAPERTON, LAMBERT, AND MAZE, JUDGES.
Matthew M. Spencer has appealed from the judgment of the Jefferson Circuit Court convicting him of second-degree assault and tampering with physical evidence. He was sentenced to thirteen years' imprisonment. On appeal, Spencer challenges the validity of Kentucky Rules of Criminal Procedure (RCr) 9.40, which provides for peremptory challenges, as well as the description of "justification" as a "privilege" in the jury instructions. Because both of these issues were unpreserved, Spencer seeks review pursuant to the palpable error rule, RCr 10.26. We affirm.
In April 2011, the Jefferson County grand jury indicted Spencer on one count of first-degree assault or complicity to first-degree assault pursuant to Kentucky Revised Statutes (KRS) 508.010 and KRS 502.020, as well as one count of tampering with physical evidence pursuant to KRS 524.100. These charges arose from events several months earlier in January 2011, when Spencer, acting alone or in complicity with others, stabbed Jody Hill with a knife following a heated telephone argument and washed the blood evidence from the knife to prevent the police from using it as evidence. At trial, Spencer presented a self-defense theory.
Following the trial, a jury returned a verdict finding him guilty of second-degree assault and of tampering with physical evidence. The jury then recommended a ten-year sentence for the assault conviction and a three-year sentence for the tampering conviction, to be served consecutively for a total of thirteen years. Spencer filed a motion for a judgment notwithstanding the verdict or for a new trial on the basis of several trial errors, including the court's ruling on his request to play the entirety of the recorded in-car video made during the arrest and investigation, improper questions to the court clerk regarding Spencer's offenses, the lack of tampering evidence, and the denial of his motion to use his proposed jury instructions. Following a sentencing hearing, the trial court entered a final judgment on May 7, 2012, finding Spencer guilty of second-degree assault and tampering with physical evidence and sentencing him to thirteen years' imprisonment pursuant to the jury's recommendation. By separate order entered the same day, the court denied Spencer's post-trial motions, but granted him leave to proceed in forma pauperis on appeal and appointed the Louisville Metro Public Defender to represent him. This appeal follows.
On appeal, Spencer raises two issues. The first addresses the constitutionality of RCr 9.40 and KRS 29A.290(2)(b) based upon a purportedly improper delegation of legislative authority. The second addresses language in the jury instructions. Because these issues were not preserved, Spencer requests that this Court review the issues for plain error pursuant to RCr 10.26.
RCr 10.26 defines a palpable error as an "error which affects the substantial rights of a party [that] may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."
In Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006), the Supreme Court of Kentucky recently described the palpable error standard of review: "This Court reviews unpreserved claims of error on direct appeal only for palpable error. To prevail, one must show that the error resulted in 'manifest injustice.'"
While the language of RCr 10.26 and Federal Rule of Criminal Procedure 52(b) differ substantially, and recognizing that this Court is not obligated to follow [United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)], we nevertheless believe it to be a valuable guide in the application of our palpable error rule. To discover manifest injustice, a reviewing court must plumb the depths of the proceeding, as was done in Cotton, to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.
Martin, 207 S.W.3d at 4. See also Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (holding that palpable error relief is not available unless three conditions are present: 1) the error was clear or plain under existing law; 2) it was more likely than ordinary error to have affected the judgment; and 3) it so seriously affected the fairness, integrity, or public reputation of the proceeding to have been jurisprudentially intolerable). With this standard in mind, we shall address Spencer's unpreserved arguments.
Spencer's first argument relates to the validity of RCr 9.40. With this rule, the Supreme Court of Kentucky set forth the number of peremptory challenges the ...