                IMPORTANT NOTICE
         NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINIOJ\,I IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
ACTION.
                                             RENDERED: FEBRUARY 16, 2017
                                                    NOT TO BE PUBLISHED

              ciuprtmt <tlnurf nf ~tnfurku
                             2016-SC-000050-MR


JOHNATHAN YOUNG                                                     APPELLANT


                ON APPEAL FROM MONROE CIRCUIT COURT
V.               HONORABLE DAVID L. WILLIAMS, JUDGE
                         NO. 10-CR-00109-002


COMMONWEALTH OF KENTUCKY                                             APPELLEE



                  MEMORANDUM OPINION OF 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 v. 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 fire, 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 Courtjury 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.


                                         2
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 v. 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




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