# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINIOJ\,I IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BYTHE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUTAS AN UNPUBLISHED DECISION IN THE FILED DOCUMENTAND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: FEBRUARY 16, 2017 NOT TO BE PUBLISHED 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



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

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, JohnathanYoung, was convicted by a Monroe Circuit Court juryofmurder by complicity, first-degree robbery by complicity, and seconddegree arson by complicity. On appeal, this Court reversed Appellant's conviction and vacated his sixty-five year prison sentence on the basis of improperjuryinstructions. 

### Young v. Commonwealth, 426 S.W.3d 577 (Ky. 2014). Therein, we provided the following factual background: Duringthe early morning hours ofAugust 26, 2010, fire and rescue workers responded to a report ofa 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 bodywas badlyburned, there were two suspicious round holes in his skull. An autopsy ofMartin's body confirmed that his cause ofdeath had been two gunshotwounds to the head, not the fire at his residence.Police soon learned that on the evening ofthe 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 ofthe men wentby the name "Jess." This information led police to focus their investigation onJesse 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, Appellantwas retried and convicted by a Monroe Circuit Courtjury of complicity to murder, complicity to second-degree arson, and complicity to theftbyunlawful takingunder $500. He was sentenced to twenty-five years' imprisonment. Appellant now appeals his conviction and sentence as a matter ofright. See Ky. Const. § 110(2)(b). He raises only one issue. 

### Analysis DuringAppellant's trial, the Monroe Circuit Court bailiffwould open each day ofAppellant'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 ofsilent prayer." After a briefpause, the court commenced trial. This occurred in the presence ofAppellant and thejury. Appellant now claims that this invocation ofprayerwas in error, and that reversal ofhis 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 notreverse 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.

22011) ("even alleged constitutional errors, ifunpreserved, are subject to palpable error review."). The underlying basis for Appellant's appeal is an alleged violation ofthe FirstAmendment's Establishment Clause. A similar issue was aptly addressed in 

### Bates v. Secretary, Florida Department ofCorrections, 768 F.3d 1278 (11th Cir. 2014). The 

### Batescourtultimately 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 ofthe Establishment Clause at trial does not, standing alone, enable a criminal defendant to challenge his conviction.

[However,] [w]hen religion is the basis ofa due process challenge, courts look to whether the religious features ofthe trial substantiallyimpaired the fairness ofthe 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 [oftheir convictions] unless the content ofthe prayer substantially impaired the fairness oftheir trial."). The evidence againstAppellantwas clearly significant. He had been convicted by two differentjuries. In addition, he has failed to raise any other claim oferror on appeal other than the present issue, thus indicating the propriety ofhis trial. Appellant also invoked religion during the penaltyphase oftrial byhaving multiple family members testify to their family's strong evangelical religious convictions. Therefore, under the specific facts ofthe 3presentcase, we cannot say that the several silentprayers impaired the fairness ofAppellant's trial. There was certainlyno palpable errorhere. 

### Conclusion Forthe foregoing reasons, we hereby affirm thejudgmentofthe Monroe Circuit Court. All sitting. Minton, C.J.; Cunningham, Hughes, VanMeter, Venters, and Wright, JJ., concur. Keller, J., concurs in result only.

COUNSEL FORAPPELLANT: Samuel N. Potter DepartmentofPublic Advocacy

COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky JeffreyAllan Cross AssistantAttorney General

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