|MPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClV|L PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER
CASE lN ANV COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
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DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: FEBRUARY 16, 2017
NOT TO BE PUBLISHED

§§upreme Tnuri of Benfuckg

2016-SC-000050-MR

JOHNATHAN YOUNG APPELLANT

ON APPEAL FROM MONROE CIRCUIT COURT
V. HONORABLE DAVID L. WILLIAMS, JUDGE
NO. lO-CR-00109-002

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION 0F THE COURT
AFFIRMING

Appellant, Johnathan Young, was convicted by a Monroe Circuit Court
jury of murder by complicity, first-degree robbery by complicity, and second-
degree arson by complicity. On appeal, this Court reversed Appellant’s
conviction and vacated his sixty-five year prison sentence on the basis of
improper jury instructions Young z). Commonwealth, 426 S.W.3d 577 (Ky.
2014). Therein, we provided the following factual background:

During the early morning hours of August 26, 2010, fire and

rescue Workers responded to a report of a house fire at the home of

Thomas Max Martin. The responders found the home totally

engulfed in flames and discovered Martin dead inside the

home. Although his body was badly burned, there were two

suspicious round holes in his skull. An autopsy of Martin's body

confirmed that his cause of death had been two gunshot wounds to
the head, not the fire at his residence.

Police soon learned that on the evening of the tire, a neighbor had

visited Martin at his home at approximately 10:00 p.m. on August

25, and that at the time he had visited, two other men had been

with Martin. The neighbor stated that one of the men went by the

name “Jess.” This information led police to focus their investigation

on Jesse Parke and his eventual co-indictee, the Appellant.

Young, 426 S.W.3d at 579.

After we reversed and vacated Appellant’s conviction and sentence in
2014, Appellant was retried and convicted by a Monroe Circuit Court jury of
complicity to murder, complicity to second-degree arson, and complicity to
theft by unlawful taking under $500. He Was sentenced to twenty-five years'
imprisonment Appellant now appeals his conviction and sentence as a matter
of right. See Ky. Const. § 110(2)(b). He raises only one issue.

Analysis

During Appellant’s trial, the Monroe Circuit Court bailiff would open
each day of Appellant’s three day trial by announcing: “All Rise: Circuit Court
is now in session, Judge David Williams presiding Please bow with me for a
moment of silent prayer.” After a brief pause, the court commenced trial. This
occurred in the presence of Appellant and the jury. Appellant now claims that
this invocation of prayer was in error, and that reversal of his conviction is
required. Because this issue was not properly preserved, we will review for
palpable error. See RCr 10.26; and McCleery v. Commonwealth, 410 S.W.3d
597, 606 (Ky. 2013) (we will not reverse unless “it can be determined that

manifest injustice, i.e., a repugnant and intolerable outcome, resulted from

that error.”). See also Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky.

2011) (“even alleged constitutional errors, if unpreserved, are subject
to palpable error review.”).

The underlying basis for Appellant’s appeal is an alleged Violation of the -
First Amendment’s Establishment Clause. A similar issue was aptly addressed
in Bates 1). Secretary, Florida Department of Corrections, 768 F.3d 1278 (11th
Cir. 2014). The Bates court ultimately denied the petitioner’s habeas corpus
petition and provided the following relevant analysis:

The trouble for Bates here is that the Establishment Clause is not

a trial right; a violation of the Establishment Clause at trial does

not, standing alone, enable a criminal defendant to challenge his
conviction.

[However,] [w]hen religion is the basis of a due process challenge,

courts look to whether the religious features of the trial

substantially impaired the fairness of the proceeding; they do not

ask, in the abstract, whether the events at trial violated the

Establishment Clause.

Id. at 1289-90. See also, e.g., United States v. Walker, 696 F.2d 277, 282 (4th
Cir.1982) (“[The defendants] are not entitled to such a reversal [of their
convictions] unless the content of the prayer substantially impaired the
fairness of their trial.”).

The evidence against Appellant Was clearly significant He had been
convicted by two different juries. In addition, he has failed to raise any other
claim of error on appeal other than the present issue, thus indicating the
propriety of his trial. Appellant also invoked religion during the penalty phase

of trial by having multiple family members testify to their family’s strong

evangelical religious convictions Therefore, under the specific facts of the

3

present case, we cannot say that the several silent prayers impaired the
fairness of Appellant’s trial. There was certainly no palpable error here.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Monroe
Circuit Court.
All sitting. Minton, C.J.; Cunningham, Hughes, VanMeter, Venters, and

Wright, JJ., concur. Keller, J., concurs in result only.

COUNSEL FOR APPELLANT:
Samuel N. Potter

Department of Public Advocacy
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General

