JONATHAN LEIGH PHILLIPS V. COMMONWEALTH OF KENTUCKY JOHN DEMARCO JOHNSON V. COMMONWEALTH OF KENTUCKY
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1997-SC-05
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JONATHAN LEIGH PHILLIPS
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
97-CR-279-2
APPELLEE
COMMONWEALTH OF KENTUCKY
AND
1997-SC-0536-MR
APPELLANT
JOHN DEMARCO JOHNSON
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
97-CR-279-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
On Thanksgiving Day, November 28, 1996, seventeen-year-old Natasha Yates
was shot and killed during an exchange of gunfire between Appellants Jonathan Leigh
Phillips and John DeMarco Johnson. Following a joint trial in the Fayette Circuit Court,
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both Phillips and Johnson were convicted of wanton murder, KRS 507.020(1)(b), and
each was sentenced to twenty-five years in prison. Phillips was also convicted of
tampering with physical evidence, KRS 524.100, and received a concurrent sentence of
five years in prison for that conviction. Both appeal to this Court as a matter of right.
Ky. Const. 5 110(2)(b).
I. FACTS.
On the day in question, Phillips, Yates and Terry Burchett were socializing with
other friends at the residence of Burchett’s sister in Lexington, Kentucky. Phillips
admitted that he had smoked some crack cocaine either shortly before or after arriving
at that residence, and that all three had smoked some marijuana while at the residence.
A decision was made to purchase some more crack cocaine. To that end, Phillips,
Yates and Burchett proceeded in an automobile which belonged to Yates’s mother to
the Charlotte Court neighborhood in Lexington. At Phillips’s direction, Burchett brought
with him a .38 caliber revolver which had been loaned to him several weeks prior by
David McCall, a resident of Paintsville, Kentucky. Phillips drove the automobile,
Burchett sat in the front passenger seat, and Yates sat on the console between Phillips
and Burchett. Burchett placed the handgun under the front passenger seat.
Upon arriving at Charlotte Court, Phillips got out of the vehicle and purchased a
thirty-dollar “rock” of crack cocaine from a street dealer. He placed the cocaine in his
shirt pocket and reentered the vehicle, whereupon Johnson, who was standing nearby
and who was not involved in the cocaine transaction, called out to Phillips in an
apparently offensive manner. Phillips responded in kind and Johnson threw a bottle
which sailed over the top of the Yates vehicle. According to Phillips, he then saw
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Johnson reach under his shirt as if to draw a weapon. Phillips told Burchett to give him
the .38 revolver. Both Phillips and Burchett testified that as Burchett was passing the
.38 revolver to Phillips, Johnson fired two shots at their vehicle, one of which passed
through the glass of the driver’s side window; that Phillips fired two shots back at
Johnson, who ran away; and that Phillips then drove Yates’s vehicle away from the
scene. Johnson testified that after he threw the bottle, shots were fired at him from the
Yates vehicle; and that he first sought cover, then fired two shots back at the vehicle as
it was leaving the scene.
Upon leaving Charlotte Court, Phillips and Burchett discovered that Yates had
been shot. Phillips suggested that he and Burchett abandon Yates and the car, but
Burchett insisted that they take Yates to a hospital. When they arrived at the parking lot
of Columbia Hospital, Phillips got out of the car and told Burchett to give him the
revolver and not to mention his name or that Yates had been shot during a drug deal.
Phillips then walked away in possession of both the revolver and the $30.00 rock of
crack cocaine. Burchett drove Yates to the hospital’s emergency room. After leaving
the vehicle, Phillips removed the crack cocaine from his shirt pocket and smoked it. He
then made several telephone calls to Burchett’s sister’s residence in an unsuccessful
attempt to induce someone to meet him and take him home. During these
conversations, Phillips claimed that Burchett had taken Yates to the hospital because
Yates had been in an “accident,” but that she would be all right. Yates subsequently
died of a gunshot wound to the head.
On November 29, 1996, the day after the shooting, Phillips drove to Paintsville
and delivered the .38 revolver to its owner, David McCall. McCall testified that the
weapon was fully loaded with live ammunition when it was returned to him.
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II. ISSUES PERTAINING TO PHILLIPS.
Phillips asserts (1) the evidence was insufficient to convict him of wanton
murder; (2) he was entitled to an instruction on self-protection; (3) the evidence was
insufficient to convict him of tampering with physical evidence; (4) he should have been
tried separately from Johnson; and (5) evidence of his desire to abandon Yates and
that he smoked the crack cocaine was evidence of “other bad acts” which should have
been suppressed pursuant to KRE 404(b).
1. Wanton murder.
It is undisputed that the bullet that killed Yates was fired by Johnson, not Phillips.
Thus, Phillips claims that even though the evidence might have supported his
conviction of wanton endangerment or attempted murder of Johnson (offenses for
which he was not indicted), it did not support his conviction of the murder of Yates. We
agree that Phillips and Johnson were not acting in concert with each other so as to
create accomplice liability under KRS 502.020. Rather, the issue is one of causation.
Under the common law, proof of causation sufficient to convict of criminal
homicide required either a direct act of force by the defendant against the victim, or an
indirect act by the defendant, the probable and natural consequence of which was the
death of the victim. J. Roberson, Kentucky Criminal Law and Procedure § 278 (2d ed.
Anderson 1927); m, Graves v. Commonwealth, Ky., 273 S.W.2d
v. Commonwealth, 304 Ky. 818, 202 S.W.2d
380 (1954); Hubbard
634 (1947). This principle did not always
require that death result from the direct application of physical force by the defendant
against the victim.
Roberson, supra, §§ 277,278. Thus, in Sanders v.
Commonwealth, 244 Ky. 77, 50 S.W.2d 37 (1932), a conviction of manslaughter was
upheld where the defendant threatened his wife with a deadly weapon while they were
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in a moving vehicle and she jumped from the vehicle to her death. And in Cassell v.
Commonwealth, 248 Ky. 579, 59 S.W.2d 544 (1933), where the defendant was
charged with poisoning his wife, it was held that the criminality of the act was the same
whether he administered the poison, himself, or put it in her way to take innocently. Id.,
59 S.W.2d
at 547. However, no cases are found where a defendant was held criminally
liable because his act provoked another to inadvertently kill an innocent third party.
See generally Roberson, supra, § 395, at 525.
The facts of this case implicate three provisions of the penal code. A person is
guilty of wanton murder if, “under circumstances manifesting extreme indifference to
human life, he wantonly engages in conduct which creates a grave risk of death to
another person and thereby causes the death of another person.” KRS 507.020(1)(b).
“Wantonly” is defined as awareness and conscious disregard of a substantial and
unjustifiable risk that particular conduct would cause a particular result. The test is an
objective one. “The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation.” KRS 501.020(3). Causal relationships are addressed
in KRS 501.060, which provides in pertinent part as follows:
(1)
(2)
(3)
Conduct is the cause of a result when it is an antecedent without
which the result in question would not have occurred.
When intentionally causing a particular result is an element of an
offense, the element is not established if the actual result is not
within the intention or the contemplation of the actor unless:
(a) The actual result differs from that intended or contemplated,
as the case may be, only in the respect that a different person
or different property is injured or affected . . . .
When wantonly . . causing a particular result is an element of an
....
offense, the element is not established if the actual result is not
within the risk of which the actor is aware . . . unless:
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(a>
(4)
The actual result differs from the probable result only in the
respect that a different person . . is injured or affected . .
The’question of whether an actor knew or should have known the
result he caused was rendered substantially more probable by his
conduct is an issue of fact.
This statute was adopted from section 2.03 of the Model Penal Code.
Subsection (2)(a) extends the common law concept of transferred intent, which is
codified with respect to intentional murder in KRS 507.020(1)(a), to other intentional
crimes. Thus under either KRS 507.020(1)(a) or KRS 501.060(2)(a), the defendant is
guilty of intentional murder if he intended to kill one person (V-l), but instead killed
another (V-2). R. Lawson and W. Fortune, Kentucky Criminal Law § 2-4(e)(l)
(LEXIS 1998); m, Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987), cert. denied,
484 U.S. 1036 (1988).
Similarly, KRS 501.060(3)(a) creates the concept of transferred
wantonness, a theory of criminal liability unfamiliar to our common law. Under KRS
501.060(3)(a), a defendant is guilty of wanton murder if, under circumstances
manifesting extreme indifference to human life, he wantonly engages in conduct which
creates a grave risk of death to one person (V-l) and thereby causes the death of
another (V-2).
Pennsylvania has a statute, 18 Pa. Cons. Stat. § 303, which is identical to KRS
501.060 in all relevant respects. In Commonwealth v. Gaynor, 648 A.2d 295 (Pa.
1994), Gaynor and (coincidentally) Johnson were arguing inside a store and began
shooting at each other. Neither was injured, but shots fired by Johnson killed one
innocent bystander and wounded two others. Concluding that he had participated in
the shoot-out with the intent to kill Johnson, the Supreme Court of Pennsylvania upheld
Gaynor’s conviction of the intentional murder of the innocent bystander under the
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transferred intent theory embodied in 18 Pa. Cons. Stat. § 303(b)(l), which is the
equivalent of KRS 501.060(2)(a). That result is consistent with our holding in Smith v.
Commonwealth, supra. Similarly, in the case sub judice, if Phillips was acting with
aggravated wantonness with respect to Johnson and Yates was resultantly killed,
Phillips is guilty under KRS 501.060(3)(a) of the wanton murder of Yates.
Assuming the jury believed, as they obviously did, that Phillips fired first, they
also could have found Phillips guilty under KRS 507.020(1)(b) on the basis that by
shooting at Johnson, Phillips was acting with aggravated wantonness with respect to
Yates. Although Phillips testified that he did not consider purchasing crack cocaine
from a street dealer at Charlotte Court to be a dangerous endeavor, the jury was
entitled to believe otherwise, especially since Phillips had directed Burchett to bring a
firearm along on the trip. And although Phillips may have hoped he was shooting at an
unarmed man, a jury could reasonably conclude that a person who deemed it
necessary to arm himself before going to that neighborhood would have been aware of
the risk that others in the neighborhood, m, Johnson, would also be armed and, if
fired upon, would return fire. Phillips shot at Johnson from inside the vehicle while
seated directly beside Yates. A jury could further reasonably conclude that a person in
Phillips’s position would have been aware of the risk that if Johnson returned fire and
did not hit Phillips, the shot might very well hit the person seated next to him in the car.
Thus, even without KRS 501.060(3)(a), Phillips would be guilty of wanton murder,
because a jury could reasonably believe that “under circumstances manifesting
extreme indifference to [Yates’s] life, he wantonly engage[d] in conduct which create[d]
a grave risk of death to [Yates] and thereby cause[d] the death of [Yates].” KRS
507.020(1)(b).
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2. Self-protection.
Phillips claims he was entitled to an instruction on self-protection on his theory
that Johnson shot first. No doubt, if Phillips had been charged with the wanton
endangerment or attempted murder of Johnson, he would have been entitled to an
instruction on self-protection with respect to those offenses. And under the common
law, he would have been entitled to the instruction even though the victim was an
innocent bystander.
It long has been the settled rule that, if at the time appellant shot the
deceased he was shooting at Terry, under circumstances that would have
made the shooting and killing of Terry excusable on the ground of selfdefense, and deceased was accidentally and unintentionally shot and
killed by a bullet intended for Terry, appellant was entitled to an acquittal.
Minix v. Commonwealth, 266 Ky. 801, 100 S.W.2d 825, 826 (1937). The penal code
changed the law in that respect. KRS 503.120(2)
provides as follows:
When the defendant is justified under KRS 503.050 to 503.110 in using
force upon or toward the person of another, but he wantonly or recklessly
injures or creates a risk of injury to innocent persons, the justification
afforded by those sections is unavailable in a prosecution for an offense
involving wantonness or recklessness toward innocent persons.
As the Court of Appeals held in Kohlheim v. Commonwealth, Ky. App., 618
S.W.2d 591 (1981), this statute precludes an instruction on self-protection if the
defendant’s wanton or reckless use of deadly force caused the death of an innocent
person. Thus, Phillips was not entitled to an instruction on self-protection as a defense
to the wanton murder of Yates.
3. Tampering with phvsical evidence.
The indictment for this offense was predicated on Phillips’s disposal of the crack
cocaine by ingestion, his apparent removal and disposal of two spent cartridges from
the .38 revolver, and his return of the revolver to its owner in Paintsville. Phillips asserts
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there was no proof that any of those acts were motivated by a belief that the cocaine,
the spent cartridges, or the revolver constituted physical evidence which might be used
in an official proceeding. KRS 524.100. To summarize the relevant evidence: Phillips
first suggested to Burchett that they abandon Yates and her vehicle (inferentially for the
purpose of concealing their participation in the shooting); he took the cocaine and the
.38 revolver with him when he deserted Burchett and Yates at the Columbia Hospital
parking lot and told Burchett not to mention his name or that Yates had been shot in a
drug deal; he disposed of the cocaine by ingestion even before attempting to find a ride
home; he told Yates’s friends that Yates had been hurt in an “accident;” he personally
delivered the .38 revolver to McCall in Paintsville the next day, instead of simply
returning it to Burchett, who was still in Lexington; and when he delivered the revolver to
McCall, it was fully loaded, despite the fact that Phillips admits that he fired two rounds
at Johnson.
In Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 632-33 (1999), we held that
one who destroys, mutilates, conceals, removes or alters physical evidence
contemporaneously with the commission of his crime can be convicted of tampering
with physical evidence even though no official proceeding was pending or had been
instituted when the tampering occurred. “The compelling logic of these decisions is that
one who has committed a criminal act and then conceals or removes the evidence of
his crime does so in contemplation that the evidence would be used in an official
proceeding which might be instituted against him.” Id. at 633. Phillips’s actions
immediately following and within twenty-four hours of the shooting clearly inferred guilty
knowledge and an intent to conceal the circumstances of Yates’s death and his
involvement therein. This evidence was sufficient to support the jury’s conclusion that
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the actions he took with respect to the evidence connecting him to Yates’s death
constituted the offense of tampering with physical evidence. Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991).
4. Denial of separate trials.
Phillips’s claim of entitlement to a separate trial is premised upon the fact that
Johnson accused him of being the first to shoot, and his perception that he was thus
being prosecuted by both the Commonwealth’s attorney and Johnson’s attorney.
Suffice it to say that:
[Nleither antagonistic defenses nor the fact that the evidence for or
against one defendant incriminates the other amounts, by itself, to unfair
prejudice. . . . That different defendants alleged to have been involved in
the same transaction have conflicting versions of what took place, or the
extent to which they participated in it, vel non, is a reason for rather than
against a joint trial. If one is lying, it is easier for the truth to be
determined if all are required to be tried together.
Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177 (1976).
As in Burdell v. Commonwealth, supra, this was not a case in which evidence
was admitted which was competent as to one defendant, but incompetent as to the
other, e.q., Cosbv v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert. denied, 493
U.S. 1063 (1990), overruled on other arounds, St. Clair v. Roark, No. 99-SC-0043, 1999
WL 1044491 (KY., Nov. 18, 1999); or one where Appellant’s co-defendant was charged
as an habitual offender, but Appellant was not, m, Hardin v. Commonwealth, Ky., 437
S.W.2d 931 (1968). There is a legitimate preference for joint trials, Wilson v.
Commonwealth, Ky., 836 S.W.2d 872 (1992), cert. denied, 507 U.S. 1034 (1993),
overruled on other arounds, St. Clair v. Roark, supra, and the trial judge has broad
discretion in determining whether to sever joint indictments. The trial judge’s decision in
that regard will not be overturned absent a showing of undue prejudice to the defendant
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and a clear abuse of discretion, neither of which occurred in this case. Burdell v.
Commonwealth, supra, at 634; Dishman v. Commonwealth, Ky., 906 S.W.2d 335
(1995).
5. Other bad acts.
KRE 404(b) precludes evidence of other bad acts only if the evidence is offered
to prove the character of a person in order to show that he acted in conformity
therewith. Such evidence is admissible if it is relevant for some other legitimate
purpose. KRE 404(b)(l); Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29 (1998),
cert. denied, __ U.S. -, 119 S.Ct. 1056, 143 L.Ed.2d
61 (1999). In this case, the
ingestion by Phillips of the crack cocaine was an integral part of the offense of
tampering with physical evidence. Likewise, evidence that Phillips wanted to abandon
Yates and her automobile was relevant to prove Phillips’s desire to conceal his
involvement in the shooting of Yates, thus his motive for tampering with the cocaine and
the .38 revolver.
III. ISSUES PERTAINING TO JOHNSON.
Johnson asserts (1) the jury should not have been instructed on wanton murder,
because his act of shooting at Phillips was an intentional act of self-defense; and (2) the
trial judge should have declared a mistrial when Phillips mentioned the word
“polygraph.”
1. Wanton murder.
With respect to Johnson, the trial judge instructed the jury on alternative theories
of transferred intent and wanton murder. The instruction on transferred intent was
qualified by the privilege to act in self-protection. The instruction on wanton murder was
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not so qualified. Thus, the instructions conformed to KRS 503.120(2), quoted supra,
which precludes self-protection as a defense if the defendant wantonly or recklessly
injured an innocent bystander. Furthermore, McGinnis v. Commonwealth, Ky., 875
S.W.2d 518 (1994), which had held that a claim of self-defense precludes an instruction
on wanton murder was overruled on that specific point in Elliott v. Commonwealth, Ky.,
976 S.W.2d 416, 422 (1998).
2. “Polvaraph.”
Phillips had initially denied to the police that he had fired any shots at Johnson.
During his direct examination at trial, he testified that he decided to tell the truth after he
was asked to submit to a polygraph examination. Johnson asserts that this reference
to a polygraph examination automatically entitled him to a mistrial. We disagree. In
Tamme v. Commonwealth, supra, at 33, we held that mere utterance of the word
“polygraph” is not grounds for reversal. As in Tamme and in McQueen v.
Commonwealth, Ky., 669 S.W.2d 519, 523 (1984), cert. denied, 469 U.S. 893 (1984),
there was no indication that Phillips underwent a polygraph examination, much less that
he passed it. “There must arise a clear inference that there was a result and that the
result was favorable, or some other manner in which the inference could be deemed
prejudicial.” Tamme, supra, at 33 (quoting McQueen. supra, at 523). Johnson’s
reliance on Moraan v. Commonwealth, Ky., 809 S.W.2d 704 (1991) is misplaced. In
Morgan, the witness was a polygraph examiner, who was identified to the jury as a
police officer possessing “special interrogation skills,” and his testimony created a clear
inference that the defendant had taken and failed a polygraph examination. The
prejudice associated with evidence that the defendant or a witness underwent a
polygraph examination is the resulting inference that the polygraph examination either
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confirmed or belied the truthfulness of the witness’s testimony at trial. Absent evidence
that the witness underwent a polygraph examination, no such inference arises.
Accordingly, the judgments of conviction and the sentences imposed by the
Fayette Circuit Court are affirmed.
Lambert, C.J.; Graves, Johnstone, Stumbo and Wintersheimer, JJ., concur.
Keller, J., not sitting.
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COUNSEL FOR APPELLANT JONATHAN LEIGH PHILLIPS (97-SC-0519-MR):
John Palombi
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort. KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (97-SC-0519-MR):
A. 6. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLANT JOHN DEMARCO JOHNSON (97-SC-0536-MR):
V. Gene Lewter
Fayette County Legal Aid, Inc.
111 Church Street
Lexington, KY 40507
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (97-SC-0536-MR):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort KY 40601
Ian G. Sonego
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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