Released for Publication September 11, 2014.
ON APPEAL FROM HART CIRCUIT COURT. HONORABLE JOHN DAVID SEAY, JUDGE. NO. 12-CR-00094.
FOR APPELLANT: John Gerhart Landon.
FOR APPELLEE: Jack Conway, Attorney General, James Hayes Lawson, Assistant Attorney General.
Adrian Boyd (Boyd) appeals as a matter of right from a judgment of the Hart Circuit Court convicting him of burglary in
the first degree, assault in the fourth degree, and for being a persistent felony offender in the first degree and sentencing him to a total of twenty years' imprisonment.
As grounds for relief Boyd contends that the trial court erred by: (1) refusing to dismiss the entire jury venire after prejudicial statements by a prospective juror; (2) allowing the narration of security footage by witnesses; (3) allowing testimony by a police officer mentioning Boyd's previous arrest; (4) allowing inadmissible, speculative hearsay regarding Boyd; and (5) improperly finding Boyd to be a persistent felony offender in the first degree.
For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dwight Faulkner (Faulkner) resides in a single-family home in Horse Cave, Kentucky. Several years ago, Faulkner installed motion-activated security cameras inside and outside his home, when his father, who suffered from Alzheimer's disease, was living with him. After his father moved, Faulkner continued to operate the security cameras.
On May 3, 2012, Faulkner and Brandi Richardson (Richardson) were cleaning Faulkner's home. LaShauna Wells (Wells), an acquaintance of Faulkner's, arrived at Faulkner's home and left the door open. Shortly thereafter, two men followed Wells inside and assaulted Faulkner. Faulkner reported the assault to the Hart County Sheriff's Office several hours later. Ultimately, Boyd and Demarcus Clayton (Clayton) were arrested and charged with assault and burglary. Wells was also arrested and charged with complicity to both assault and burglary.
Boyd and Wells were tried together and, as noted above, the jury convicted Boyd of burglary in the first degree, assault in the fourth degree, and for being a persistent felony offender in the first degree. The jury convicted Wells of complicity to burglary in the first degree and complicity to assault in the second degree.
We set forth additional facts as necessary below.
II. STANDARD OF REVIEW
Boyd raises several issues, both preserved and unpreserved. The standard of review for preserved evidentiary errors is abuse of discretion. Abuse of discretion occurs when the trial court's decision in allowing or disallowing the introduction of evidence was arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945, 46 8 Ky. L. Summary 28 (Ky. 1999); (citing 5 Am.Jur.2d Appellate Review § 695 (1995)). Additionally, preserved errors can be reviewed under the harmless error standard. " A non-constitutional evidentiary error may be deemed harmless. . if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error." Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
We review unpreserved errors for palpable error. RCr 10.26. Palpable error affects the substantial rights of the party and results in manifest injustice. Furthermore, an appellant claiming palpable error must show that the error was more likely than ordinary error to have
affected the jury. Ernst v. Commonwealth, 160 S.W.3d 744, ...