DELANIA FIELDS V. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 25,200l
TO BE PUBLISHED
1999-SC-1026-MR
DELANIA FIELDS
V.
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
98-CR-00079
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Delania Fields was indicted by a Letcher County Grand Jury for the
murder of her newborn child. She was convicted of manslaughter in the first degree
and sentenced to twenty years in prison. She appeals to this court as a matter of right,
Ky. Const. § 110(2)(b), asserting three claims of error, a: (1) there was insufficient
evidence of extreme emotional disturbance to warrant an instruction on first-degree
manslaughter; (2) the Commonwealth was permitted to introduce irrelevant and
inflammatory evidence; and (3) a prospective juror should have been excused for
cause.
From February 1997 until the end of October 1997, Appellant engaged in a
secret extramarital sexual relationship with Roger Baker. Although she continued to live
with her husband, Appellant had no sexual intercourse with him during this period. In
December 1997 or January 1998, Appellant discovered that she had become pregnant
by Baker and determined that the date of conception was October 27, 1997. She
informed Baker of the fact, but kept it a secret from her husband, her family and her
friends. Appellant testified at trial that she entered into a state of denial regarding the
pregnancy, i.e., if she did not acknowledge the pregnancy, it would cease to exist.
There was substantial lay testimony that from January to July 1998, Appellant
underwent a personality change and appeared to be severely depressed. Eventually,
Appellant admitted to her family and friends that she was pregnant, but claimed the
pregnancy resulted from intercourse with her husband approximately twelve weeks after
the date of actual conception.
At II:00 p.m. on July 25, 1998, Appellant began to experience severe vaginal
bleeding. At approximately 3:00 a.m. on July 26, she delivered a full term baby girl on
the kitchen floor of her residence. She wrapped the infant in a towel and placed it in a
garbage bag, which she then placed in the kitchen closet. She tried to clean the blood
from the kitchen floor but ultimately lost consciousness. Later that morning, Appellant’s
husband found her lying on the kitchen floor and took her to the hospital. Although
Appellant denied having given birth, a gynecological examination revealed the presence
of an umbilical cord and a placenta but no fetus. During a subsequent search of
Appellant’s residence, the infant was found dead inside the garbage bag in the kitchen
closet. An autopsy revealed that the baby had breathed before dying and that the most
likely cause of death was asphyxiation.
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I. EXTREME EMOTIONAL DISTURBANCE.
A person is guilty of murder under KRS 507.020(1)(a) if he/she intentionally
causes the death of another, “except that in any prosecution a person shall not be guilty
under this subsection if he acted under the influence of extreme emotional disturbance
for which there was a reasonable explanation or excuse, the reasonableness of which
is to be determined from the viewpoint of a person in the defendant’s situation under
the circumstances as the defendant believed them to be.” A person is guilty of
manslaughter in the first degree under KRS 507.030(1)(b) if he/she intentionally causes
the death of another “under circumstances which do not constitute murder because he
acts under the influence of extreme emotional disturbance, as defined in subsection
(l)(a) of KRS 507.020.”
Appellant asserts there was no proof that she was under the influence of
extreme emotional disturbance (EED) when she killed her child; thus, there was no
evidentiary basis for her conviction of first-degree manslaughter. Commonwealth v.
DeHaven, Ky., 929 S.W.2d 187 (1996). She claims that the evidence at trial proved
only that she killed her child while in a “dissociative trance,” which is a mental illness or
disorder. We agree that mental illness, standing alone, does not constitute EED. See
Cecil v. Commonwealth, Ky., 888 S.W.2d 669 (1994); Bowlina v. Commonwealth, Ky.,
873 S.W.2d 175 (1993) cert. denied, 513 U.S. 862 (1994); Stanford v. Commonwealth,
Ky., 793 S.W.2d 112 (1990); Wellman v. Commonwealth, Ky., 694 S.W.2d 696 (1985);
Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980) cert. denied, 450 U.S. 989 (1981),
overruled on other arounds, Pavne v. Commonwealth, Ky., 623 S.W.2d 867 (1981).
However, that does not mean that evidence of mental illness precludes a finding of
EED.
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At trial, two psychologists, Dr. John Ludgate and Dr. Harwell Smith, testified that
when Appellant killed her child she was suffering from dissociative disorder, a mental
impairment characterized by a detached, emotionless, almost robotic state of mind; and
that, as a result, Appellant lacked substantial capacity to appreciate the criminality of
her conduct or to conform her conduct to the requirements of law.
Neither psychologist
had seen or treated Appellant prior to July 26, 1998. Dr. Ludgate began treating her for
major depression and anxiety disorder on August 8, 1998, twelve days after the birth
and death of her child. It was not until September 17, 1998, that he concluded that
Appellant had developed dissociative disorder on the morning of July 26. Dr. Ludgate
testified that dissociative disorder is a rare condition which usually occurs only in times
of extreme trauma, and that the dissociation occurred when Appellant realized she was
actually going to give birth. Dr. Smith saw Appellant in January 1999 for the purpose of
evaluation. In addition to his own examination, he reviewed Dr. Ludgate’s records and
agreed that Appellant was suffering from dissociative disorder when she killed her child.
Appellant claimed at trial that she could not recall the events of July 26, 1998.
However, the jury heard an audiotape of a lengthy statement she gave on that date to
Kentucky State Police Detective Avery Shrum, who was interviewing her in an attempt
to locate the missing baby. During that interview, Appellant described in detail and in
an apparently normal and lucid tone of voice the events leading up to and including the
birth and death of her child and the disposition of the body.
Pursuant to the testimonies of Drs. Ludgate and Smith, the jury was instructed
on the defense of insanity. Over Appellant’s objection, the jury was also instructed on
first-degree manslaughter under KRS 507.030(1)(b), i.e., intentional homicide
committed while under the influence of EED. The jury rejected the insanity defense, as
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they were entitled to do under the totality of the evidence presented in this case.
KRS
5OO.O70(3); Port v. Commonwealth, Ky., 906 S.W.2d 327 (1995). However, the jury did
not convict Appellant of murder, but of first-degree manslaughter.
The language in KRS 507.020(1)(a) that describes EED was borrowed from
Section 210.3(l)(b) of the Model Penal Code. KRS 507.030 (1974 Commentary). The
statutory description first adopts the common-law concept of “provocation,” i.e., the
requirement of an initiating event, though the provocation need not have been
perpetrated by the victim of the homicide. Model Penal Code and Commentaries, Pt. II,
§ 210.3, Comment 5, at 60-61 (A.L.I. 1980) (hereinafter Commentaries). The additional
requirement that there be “a reasonable explanation or excuse” is a derivative of the
common-law requirement that the provocation be “adequate.” R. Lawson and W.
Fortune, Kentuckv Criminal Law § 8-3(b)(3), at 342 (LEXIS 1998). Reasonableness is
ordinarily an objective evaluation; and the common-law concept of “sudden heat of
passion” was premised solely upon an objective evaluation of the adequacy of the
provocation. McHaraue v. Commonwealth, 231 Ky. 82, 21 S.W.2d 115, 117-18 (1929).
However, the description of EED in KRS 507.020(1)(a) recites a subjective test in that
the reasonableness of the explanation or excuse is determined from the viewpoint of “a
person in the defendant’s situation under the circumstances as the defendant believed
them to be.” (Emphasis added.) By this language, the drafters of the Model Code
anticipated that EED could be premised upon a reasonable, but mistaken, belief.
Commentaries, supra, at 61-62.
The drafters of the Model Code rejected the notion that murder could be reduced
to first-degree manslaughter solely on the basis of “diminished responsibility” (mental
abnormality), a fact relevant to either proving the defense of insanity or disproving the
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“extreme indifference to human life” element of the offense of, e& wanton murder
under KRS 507.020(1)(b). However, the drafters did contemplate that evidence of
diminished responsibility would be considered in evaluating the defendant’s situation
under the circumstances as he/she believed them to be. Commentaries, supra, at 72.
Our early cases did not interpret EED as had the drafters of the Model Code, but
instead held that EED could be proven solely by evidence of diminished responsibility,
e&, mental disorder. Edmonds v. Commonwealth, Ky., 586 S.W.2d 24 (1979),
overruled on other arounds, Wellman v. Commonwealth, supra; Ratliff v.
Commonwealth, Ky., 567 S.W.2d 307 (1978) overruled by Wellman v. Commonwealth,
supra, and McClellan v. Commonwealth, infra. In Gall v. Commonwealth, supra, at 109,
and Wellman v. Commonwealth, supra, at 697-98, we retreated from that position and
held that while mental illness was relevant in measuring the reasonableness of a
defendant’s reaction to provocation, it, standing alone, did not constitute EED. In
McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986), cert. denied, 479 U.S. 1057
(1987), we adopted, sub silentio, the interpretation propounded by the drafters of the
Model Code.
[A]n underlying mental disease may be considered by a jury in making its
determination of whether a defendant’s explanation or excuse for his
alleged “extreme emotional disturbance” is reasonable under the
circumstances as he believed them to be, but standing alone, evidence
which tends to establish insanity or mental illness is not sufficient to
establish extreme emotional disturbance.
Id. at 468. The McClellan Court then fashioned a definition of EED which, pursuant to
Holbrook v. Commonwealth, Ky., 813 S.W.2d 811, 815-16 (1991) overruled on other
grounds, Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998), now accompanies
every instruction on first-degree manslaughter premised upon KRS 507.030(1)(b), viz:
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Extreme emotional disturbance is a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one’s judgment, and to cause one
to act uncontrollably from the impelling force of the extreme emotional
disturbance rather than from evil or malicious purposes. It is not a mental
disease in itself, and an enraged, inflamed, or disturbed emotional state
does not constitute an extreme emotional disturbance unless there is a
reasonable explanation or excuse therefor, the reasonableness of which
is to be determined from the viewpoint of a person in the defendant’s
situation under circumstances as [the] defendant believed them to be.
715 S.W.2d at 468-69.
In summary, the mere presence of mental illness, standing alone, does not
constitute EED. It is the presence of adequate provocation, not the absence of mental
illness, which is essential to a finding of EED. Conversely, the presence of mental
illness does not preclude a finding of EED. In fact, such is entirely relevant to a
subjective evaluation of the reasonableness of the defendant’s response to the
provocation.
We sometimes refer to the provocation requirement as the “triggering” event.
Foster v. Commonwealth, Ky., 827 S.W.2d 670, 678 (1991) cert. denied, 506 U.S. 921
(1992); see also Baze v. Commonwealth, Ky., 965 S.W.2d 817, 823 (1997), cert.
denied, 523 U.S. 1083 (1998); Whitaker v. Commonwealth, Ky., 895 S.W.2d 953, 954
(1995); Cecil v. Commonwealth, supra, at 673. In fact, Professors Lawson and Fortune
posit that the concept of “adequate provocation” is broad enough to include “the
cumulative impact of a series of related events.” Lawson and Fortune, supra, § 83(b)(3), at 342 (citing California v. Wharton, 809 P.2d 290 (Cal. 1991) and Pennsylvania
v. Whitfield, 380 A.2d 362 (Pa. 1977)). The requirement that the provocation be
“adequate” also includes the requirement that it be “uninterrupted.”
Because one’s emotional response to a situation may dissipate over time,
a subsidiary inquiry arises as to whether there intervened between the
provocation and the resulting homicide a cooling-off period of sufficient
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duration that the provocation should no longer be regarded as “adequate.”
Commentaries, supra, at 55. See Sprinaer v. Commonwealth, Ky., 998 S.W.2d 439,
452 (1999); Moraan v. Commonwealth, Ky., 878 S.W.2d 18, 21 (1994); Foster v.
Commonwealth, supra, ato678. q u i r e d , h o w e v e r , t h a t t h e h o m i c i d e o c c u r
It is n t re
concurrently with the provocation, or even shortly thereafter, so long as the provocation
remains uninterrupted until the killing. Soears v. Commonwealth, Ky., 30 S.W.3d 152,
155 (2000); Sprinaer v. Commonwealth, supra, at 452; McClellan v. Commonwealth,
supra, at 468.
Here, there were two theories under which the jury could have reasonably
concluded that Appellant was acting under the influence of EED when she killed her
newborn infant. First, there was substantial evidence from lay witnesses, including
Appellant, herself, that the discovery of her out-of-wedlock pregnancy triggered an EED
that remained uninterrupted until she killed her child. Alternatively, in view of the
evidence of Appellant’s admitted state of denial with respect to her pregnancy, the jury
could have reasonably concluded that the birth, itself, was so shocking to her as to
constitute adequate provocation which triggered an EED. Either way, the evidence was
sufficient to support her conviction of first-degree manslaughter. Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991).
II. THE INFANT CAR SEAT.
Appellant asserts it was error to admit into evidence Commonwealth’s exhibit 38,
an infant car seat. One of Appellants theories at trial was that Roger Baker, the child’s
biological father, maliciously stalked her during her pregnancy and thereby contributed
to the temporary insanity that overcame her, causing her to kill her child. Baker denied
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stalking Appellant, but admitted that he stayed in contact with her out of concern for the
welfare of his unborn child. To prove the sincerity of this claim, he testified that on July
6, 1998, he spent $517.50 at a Pikeville department store to purchase clothing, diapers,
and an infant car seat in anticipation of the child’s birth. The car seat was introduced
into evidence to verify this testimony. On appeal, Appellant asserts that the probative
value of the car seat was substantially outweighed by its prejudicial effect, KRE 403,
primarily because of the alleged prominent display on the car seat of a photograph of a
smiling infant.
Exhibit 38 is an “evenflo” brand infant car seat. There are no photographs
displayed on the car seat, itself. Attached by a plastic tie to the front of the car seat are
four items, a 5” x 5” recall list card, a 5%” x 5” warranty card, a 5%” x 8%” instruction
sheet, and a 6’/2” x 8” advertisement describing the features of the product. These
items do not contain a photograph of an infant. In the car seat’s box container, but not
attached to the car seat and not marked as a separate exhibit, is a 4” x 7” twelve-page
pamphlet describing other “evenflo” products available for purchase from the
manufacturer. On the front of this pamphlet is a picture of a woman holding an infant in
her arms. The size of the picture of the infant is 2” x 2”. The car seat was removed
from the box container before being marked as evidence. The remaining contents of
the box, if any, were not exhibited to the jury. If the unattached pamphlet was allowed
to remain on the car seat during trial, that fact is not apparent from examining the
display of the exhibit on the trial videotape; and, if so, Appellant did not object to it on
that basis at trial. Ruppee v. Commonwealth, Ky., 821 S.W.2d
Commonwealth, Ky., 544 S.W.2d 219, 222 (1976).
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484 (1991); Kennedy v.
The only expressed objection to exhibit 38 was that it was irrelevant. Its
relevance was that it tended to disprove Appellant’s claim that Baker “stalked” her
during her pregnancy, from which it could be inferred that he did not drive her insane,
from which it could be inferred that she was not insane when she killed her child. While
this is admittedly a close call, we do not find that the trial judge abused his discretion in
admitting exhibit 38 into evidence. Cf. Commonwealth v. Enalish, Ky., 993 S.W.2d 941,
945 (1999). If the 4” x 7” pamphlet containing the 2” x 2” photograph of an infant was
on the car seat during trial, it was not “prominently displayed” and no mention was
made of it or attention called to it.
III. FAILURE TO EXCUSE JUROR FOR CAUSE.
Appellant claims it was error not to excuse Juror No. 28 for cause. Appellant
used a peremptory strike to remove No. 28 from the panel. Thomas v. Commonwealth,
Ky., 864 S.W.2d 252, 259 (1993), cert. denied, 510 U.S. 1177 (1994).
Juror No. 28 stated during voir dire that he had heard a lot of “rumors and
gossip” about the case and that he might be “affected” by what he had heard. But
when questioned as to the nature of the rumors and gossip, he replied that he had
heard that Appellant had killed her baby and thrown it away in a garbage bag. Of
course, those facts were essentially admitted by Appellant and uncontested at trial.
Juror No. 28 added, without prompting, that he would not decide a case on the basis of
rumors and gossip; and that he had “been on enough cases before -- I know when you
hear the evidence, it is never the same as what you heard before.” He also advised
that he had an open mind with respect to Appellant’s insanity defense. This juror was
questioned only by defense counsel. Neither the prosecutor nor the judge asked him
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any questions, much less the rehabilitating “magic question” condemned in
Montaomery v. Commonwealth, Ky., 819 S.W.2d
713 (1991).
The only basis for Appellant’s claim of reversible error is Juror No. 28’s
statement that he might be “affected” by the information which he heard through rumors
and gossip. However, No. 28 was an experienced juror who knew the difference
between evidence and “rumors and gossip,” and who advised without being prompted
that he would not decide a case on the basis of the latter. The only pre-trial information
that he had acquired was evidence that was uncontested at trial. On the other hand, he
stated that he had an open mind about Appellant’s insanity defense, which was the
principal contested issue at trial. Considering the totality of his answers to defense
counsel’s voir dire, we conclude that the trial judge did not abuse his discretion by not
excusing Juror No. 28 for cause. Williams v. Commonwealth, Ky. App., 829 S.W.2d
942 (1992) (juror who stated his belief that one who admitted killing was guilty of
murder rehabilitated himself by his subsequent statement that he would excuse the
killing if he believed the defendant acted in self-defense).
Accordingly, the judgment of conviction and sentence imposed by the Letcher
Circuit Court are affirmed.
All concur. Stumbo, J., not sitting.
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COUNSEL FOR APPELLANT:
Ned Barry Pillersdorf
Pillersdorf, Derossett & Barrett
124 W. Court Street
Prestonsburg, KY 41653
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Anitria M. Franklin
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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