               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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                                                    RENDERED: APRIL 27, 2017
                                                       NOT TO BE PUBLISHED




                 juprnttt Qlourf 11f ~tnfu~ ~                          [NJ~ [L
                                 2016-SC-000118-MR           /Q)~U~5µ8/17 Kim GJ-.~
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.

                                           3
 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).

                                            4
charge. Both parties further agree that intent can be inferred from the actions

of the defendant.9

      Powell asserts that the Commonwealth <lid not meet its burden of

p~oving that the shots sent Justin's way were intended to kill him. Powell .

advances his position by arguing that the evidence produced did not indicate

the shooters skill level, how close a bullet came to hitting Justin, and which of

the multiple shots were fired while Justin was outside ofhis residence.

      The Commonwealth rebuts his argument by drawing our attention to the

fact that bullet holes were found in trash cans that were located approximately

five to six feet from the door that Justin had exited. Additional bullets struck a

retaining wall at the front of the residence and a downspout at the rear of it.

      Mindful of our standard that a directed verdict should only be granted if

the evidence is so insufficient that a reasonable jury could not find guilt, we

find no error in the trial court's denial of a directed verdict. While the shooter

did not necessarily verbally indicate that he or she was there to kill Justin, a

reasonable jury could, and under the facts presented in this case did, find that

the Powell-Hughes party of four showing up at the Massengale residence and

shooting in Justin's direction with bullets striking in close proximity to him,

sufficiently indicated the shooter's intent to kill. Furthermore, the four

individuals at Justin's house that night had been involved with assaulting




    9 Stopher v. Commonwealth, 57 S.W.3d 787, 802 (Ky. 2001); Marshall v.
Commonwealth, 60 S.W.3d 513, 518 (Ky. 2001).

                                         5
Justin's brother-in-law and a jury may fairly consider that fact, given the

violent nature of the crime with which Powell was charged.

       Moreover, because this error is unpreserved, it must meet the high

standard of palpable error. It cannot be said that the trial court's directed-

verdict denial was error.

   C. Powell's Sixth Amendment Rights were not violated.
       Powell asserts that his Sixth Amendment rights were violated. He

combines two statements made to the jury to advance this positon.

       First, Powell. notes that at the close of voir dire the trial court informed

the jury that "Not to follow the law would be a breach of your duty. It violates

the very system in which we are participating." Powell pairs this statement with.·

a response given by the trial court to a jury question during the penalty phase.

The jury, while deliberating the second-degree persistent felony offender

charge, submitted the following question to the trial court: "Ifvve believed·No. 5

A-E are all true, do we still have a choice to say Persistent Felony or is it a la,.v ·

aaeleF eaF Oath anel He eheiee maele is it our choice to say not guilty of a

Persistent Offender?" (Strikethrough in original.) With both parties in

agreement; the trial court responded to the jury's ques"tion by stating simply,

"You are to follow the instructions."

      Powell asserts that the jury, looking to provide leniency to Powell, was

asking the trial court for guidance concerning jury nullification. Jury

nullification occurs when a jury believes that the elements to prove guilt have




                                          6
been met for a certain offense, but decides nonetheless to acquit the defendant

of the charge. 10 And jury nullification is a constitutionally permissible option.11

          Recognizing that jury nullification is constitutionally permissible, we

must address the narrower question before us: whether the trial court inhibited

the jury's right to nullification. Both parties encourage us to revisit our
                                  '
analysis in Medley v. Commonwealth, but that is not necessary to dispose of

Powell's argument. 12 The trial court did not violate Powell's Sixth Amendment

rights.

       First, we find no error with the judge's comment· after voir dire,

instructing the jury to follow the law and a failure to do so would be a breach of

their oath. We are persuaded by United States v. Avery, which stated,

"Although jurors may indeed have the power to ignore the law, their duty is to

apply the law as interpreted by the court and they should be so instructed."13

That is precisely what the trial court judge did; she simply instructed the jury

to apply the law, reminding them of their duty to do so.



       10 United States v. Thomas, 116 F.3d 606, 614 (2nd Cir. 1997) ("'nullification,' a
practice whereby a juror votes in purposeful disregard of the evidence, defying the
court's instructions on the law.").
       11 United States v. Leach, 623 F.2d 1337 (5th Cir. 1980) ("Jury nullification-the
right of a jury to acquit for whatever reasons even though the evidence supports a
conviction-is an important part of the jury trial system guaranteed by the
Constitution."); McGuire v. Commonwealth, 368 S.W.3d 100, 107 (Ky. 2012);
Commonwealth v. Durham, 57 S.W.3d 829, 838 (Ky. 2001).
       12 Medley v. Commonwealth, 704 S.W.2d 190 (Ky. 1985).

       13 United States v. Avery, 717 F.2d 1020, 1027 (6th Cir. 1983) (citing Sparf&
Hansen v. United States, 156 U.S. 51, (1895); United States v. Wiley, 503 F.2d 106 (8th
Cir. 1974) United States v. Dougherty, 473 F.2d 1113 (D.C. Cir: 1972); United States v.
Dellinger, 472 F.2d 340, 408 (7th Cir. 1972)).

                                           7
       Further, the judge's response to the jury during the penalty phase, even

in conjunction with her prior statement, does not persuade us that she violated

the jury's power of nullification. Both parties agreed to the response the trial

court gave   to the jury. "A party generally may not invite error and then
complain thereof."14 When faced with the question, the trial court might have

simply responded with "I cannot answer the question," but the answer given

and agreed to by each party was not in the least inappropriate .. It appears

Powell is arguing that the trial court should have responded to the jury's

question by informing them of their rights to jury nullification, but a defendant

does not have such a right.is

       Because we are satisfied that the trial court did not in any way interfere

with the jury's deliberation, we find no error.

   D. There was no Error in the Jury Instructions.
       Lastly, Powell asserts that the trial court erred in the jury instructions.

He asks us specifically to review the trial cdurt's jury instructions as it applies

to his conviction for attempt to commit first-degree murder (principal or

accomplice). Powell argues that the combination instructions employed by the

trial court denied him .his right to a unanimous verdict.

       Powell attempts to further his argument by asserting for the first time on

appeal that failing to include Tequila Brown and Jeremy Griffen as potential


      1:. See United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993); Bruce v.
Commonwealth, 581 S.W.2d 8, 9 (Ky. 1979).
      1s See United States v. Carr, 424 F.3d 213, 219 (2nd Cir. 2005); Merced v.
McGrath, 426 F.3d 1076, 79 (9th Cir. 2005); United States v. Manning, 79 F.3d 212,
219 (1st Cir. 1996).

                                         8
principals or accomplices was error, a notion that Powell's trial counsel

specifically rejected. Powell now asserts that individual jurors may have voted

to convict on the theory that Powell was the principal or accomplice to Griffen, ·

Brown, or Hughes, denying him his right to a unanimous verdict. Powell

further admits that he failed to object to the instruction that was given and he

failed to offer alternative instructions.

      Under Instruction No. 5, the jury was given the opportunity to convict

Powell of either Criminal Attempt to Commit Murder if they believed he fired

the gun, or Complicity to Criminal Attempt to Commit Murder if they believed

that Hughes fired the gun. In the alternative, Instruction No. 6, the instruction

under which the jury convicted Powell, included instruction No. 5 by reference.

Instruction No. 6 provided that if the jury believed beyond a reasonable doubt

that Powell was guilty of "Criminal attempt to Commit Murder or Complicity to

Criminal Attempt to Commit Murder ... but you are unable to determine from

the evidence whether the defendant committed the crime as a Principal or as

Accomplice, then you will find him guilty of Criminal Attempt to Commit

Murder, Principal or Accomplice, under this instruction." Ultimately, unable to

determine whether Powell fired the gun, or merely assisted Hughes, the jury

convicted him under Instruction No. 6.

      As the Commonwealth notes, combination jury instructions are not

prohibited in Kentucky, and they do not destroy a unanimous verdict.16

Further, "A verdict cannot be attacked as being non-unanimous·where both

      16   Halvorsen v. Commonwealth, 730 S.W.2d 921, 925 (Ky: 1986).

                                            9
theories are supported by sufficient evidence."17 Either theory in jury

Instruction No. 5 was reasonably supported by the evidence, allowing for a

proper conviction under Instruction No. 6.

      The Commonwealth introduced sufficient evidence to support a finding

that either Powell or Hughes was the shooter. As to Powell, Justin testified that

Powell was the shooter and that he recognized him because of his familiarity

with Powell, having known hir:µ for five or six years. There was also testimony_

from Officer Ullrich that after arresting Hughes, she asked what the

consequences would be if she confessed to being the shooter, and indeed did

tell the police she was the shooter, only to recant later. Powell and Hughes

were in a romantic relationship, and it would not be unreasonable for the jury

.to find Hughes's inconsistent testimony as a way to avoid the fact that Powell

was the shooter. These facts could reasonably provide sufficient evidence upon

which ajury could rely to support the principal theory of Instruction No. 5.

      Alternatively, the Commonwealth provided sufficient evidence that

Hughes herself was the shooter, and Powell was acting as an accomplice. The

gun used belonged to Hughes. Shortly before the shooting Hughes had asked

her brother to return it to her. And as noted above, Hughes originally told the

police she had been the shooter, later changing her story.1 8 These facts could

provide sufficient evidence for which a jury could support the accomplice

theory under Instruction No. 5.

      11   Id. (citing Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978)).
      1s Miller v. Commonwealth, 283 S.W.3d 690, 697 (Ky. 2009) ("It is the jury's
responsibility to weight the credibility of the evidence.").

                                           10
      Lastly, both parties recognize that Kentucky allows for inconsistent

verdicts.19 Even though Hughes was not convicted under an accomplice or

principal theory that does not suggest lack of unanimity in the verdict against

Powell. Powell admits himself that it is possible that the jury, showing leniency

to Hughes, acquitted her of being Powell's principal and/ or accomplice, while

at same time convicting Powell for the same offense.

      Accordingly, because.either theory could reasonably support a jury

finding, we find no palpable error.


                                 III.     CONCLUSION.
      For the foregoing reasons, the judgment is affirmed.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Megan Kleinline
Assistant Attorney General




      19   Commonwealth v. Harrell, 3 S.W.3d 349, 351 (Ky. 1999).

                                           11
