SHAWNTA ROBERTSON V. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 22,2002
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2000-SC-0468-DG
SHAWNTA ROBERTSON
V.
ON REVIEW FROM THE COURT OF APPEALS
1998-CA-2940
KENTON CIRCUIT COURT NO. 98-CR-132
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Michael Par-tin, a police officer employed by the city of Covington, Kentucky, was
killed when he fell through an opening between the roadway and the walkway of the
Clay Wade Bailey Bridge and into the Ohio River while in foot pursuit of Appellant
Shawnta Robertson. Following a trial by jury in the Kenton Circuit Court, Appellant was
convicted of manslaughter in the second degree for wantonly causing Partin’s death,
KRS 507.040(l), and was sentenced to imprisonment for six years. The Court of
Appeals affirmed, and we granted discretionary review to further consider the
circumstances under which criminal liability can be imposed upon a defendant for
injuries or death directly caused by the volitional act of another.
At about 2:00 a.m. on January 4, 1998, Officer Brian Kane of the Kenton County
Police Department attempted to arrest Appellant in Covington for possession of
marijuana. Appellant broke free of Kane’s grasp and began running north on Fourth
Street toward the Clay Wade Bailey Bridge which spans the Ohio River between
Covington and Cincinnati, Ohio. Kane radioed for assistance and pursued Appellant on
foot “at a sprint.” When Appellant reached the bridge, he vaulted over the concrete
barrier between the roadway and the walkway and began running north on the walkway
toward Cincinnati. Kane, who, at that point, was running on top of the concrete barrier
jumped down to the walkway and continued his pursuit.
Meanwhile, Partin and two other Covington police officers, Steve Sweeney and
Cody Stanley, responded to Kane’s request for assistance and arrived at the bridge
almost simultaneously in three separate vehicles. What was later determined to be
Partin’s police cruiser proceeded past the point where Appellant was running and
stopped. Appellant then also stopped, reversed course, and began running back
toward Kane. Kane ordered Appellant to “get down,” whereupon, Appellant raised both
hands above his head and fell to his knees in apparent submission. Kane got on top of
Appellant and pulled his hands behind his back so as to apply handcuffs. While doing
so, Kane thought he saw a shadowy movement or a flash in his peripheral vision. He
then heard a voice say that “somebody’s off the bridge.”
Partin’s vehicle was the first of the three police cruisers to reach the bridge. He
stopped in the right northbound lane just beyond where Appellant was running on the
walkway. Stanley stopped his vehicle directly behind Partin’s vehicle, and Sweeney
stopped in the left northbound lane, also behind Pat-tin’s vehicle. Sweeney and Stanley
testified that they did not see either Appellant or Kane on the walkway and stopped only
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because Par-tin had done so. Both saw Par-tin exit his vehicle, proceed to the concrete
barrier, place his left hand on the barrier, then vault over the barrier “as if he had done it
a million times before,” and disappear. The concrete barrier was thirty-two inches high.
The railing of the walkway was forty-three inches high. There was a forty-one-inch-wide
open space between the concrete barrier and the walkway railing. Partin fell through
the open space into the river ninety-four feet below. His body was recovered four
months later.
I. CRIMINAL CAUSATION.
No one will ever know why Partin fell through the opening between the concrete
barrier and the pedestrian walkway. Perhaps, he did not realize the opening was there.
Perhaps, he knew it was there and miscalculated his vault. Either way, however, his
death resulted from his own volitional act and not from any force employed against him
by Appellant. Whether Appellant’s act of resisting arrest by unlawful flight from
apprehension was a legal cause of Partin’s death requires application of the provisions
of KRS 501.020(3)
(definition of “wantonly”), KRS 501.020(4)
(definition of “recklessly”),
and KRS 501.060 (“causal relationships”).
KRS 501.020(3)
defines “wantonly” as follows:
A person acts wantonly with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and
consciouslv disreqards a substantial and uniustifiable risk that the result
will occur or that the circumstance exists. The risk must be of such nature
and degree that disregard thereof constitutes a gross deviation from the
standard of conduct that a reasonable berson would observe in the
situation. . . . (Emphasis added.)
KRS 501.020(4)
defines “recklessly” as follows:
A person acts recklessly with respect to a result or to a
circumstance described by a statute defining an offense when he fails to
-3-
perceive a substantial and uniustifiable risk that the result will occur or that
the circumstance exists. The risk must be of such nature and degree that
the failure to perceive it constitutes a gross deviation from the standard of
care that a reasonable oerson would observe in the situation. (Emphasis
added.)
Thus, wantonness is the awareness of and conscious disregard of a risk that a
reasonable person in the same situation would not have disregarded, and recklessness
is the failure to perceive a risk that a reasonable person in the same situation would
have perceived.
KRS 501.060 provides in pertinent part:
(1)
Conduct is the cause of a result when it is an antecedent without
which the result in question would not have occurred.
i;,’
When wantonly or recklessly causing a particular result is an
element of the offense, the element is not established if the actual
result is not within the risk of which the actor is aware or. in the
case of recklessness. of which he should be aware unless:
The actual result differs from the probable result only in the
(a>
respect that a different person or different property is iniured
or affected or that the probable injury or harm would have
been more serious or more extensive than that caused; or
The actual result involves the same kind of injury or harm as
(b)
the probable result and occurs in a manner which the actor
knows or should know is rendered substantially more
probable bv his conduct.
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.
(4)
(Emphasis added.)
Obviously, Appellant’s unlawful act of resisting arrest by fleeing from
apprehension was a “but for” cause of Par-tin’s fatal attempt to pursue him by vaulting
from the roadway of the bridge to the walkway. As noted by the 1974 Commentary to
KRS 501.060, the issue then becomes primarily one of mens rea.
Once an act is found to be a cause in fact of a result and a
substantial factor in bringing about that result, it is recognized as the
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proximate cause unless another cause, independent of the first,
intervenes between the first and the result. And even then the first cause
is treated as the proximate cause if the harm or injury resulting from the
second is deemed to have been reasonably foreseeable by the first actor.
Thus, the fact that Par-tin vaulted over the concrete barrier of his own volition
does not exonerate Appellant if Par-tin’s act was either foreseen or foreseeable by
Appellant as a reasonably probable result of his own unlawful act of resisting arrest by
fleeing from apprehension. Robert G. Lawson and William H. Fortune, Kentuckv
Criminal Law § 2-4(d)(3), at 74 (LEXIS 1998). And KRS 501.060(3)(a) clarifies that it is
immaterial that it was Partin, as opposed to Kane or one of the other police officers,
who fell from the bridge if such was a reasonably foreseeable consequence of the
pursuit.
In Phillips v. Commonwealth, Ky., 17 S.W.3d 870 (2000), cert. denied, 531 U.S.
1016 (2000), we relied, inter alia, on KRS 501.060 in upholding the wanton murder
conviction of a defendant who fired shots at an intended victim from inside a vehicle
and thereby induced the intended victim to return fire and kill a passenger in the
defendant’s vehicle. We held that it was reasonably foreseeable that, if shots were
fired at another person from inside a vehicle, the other person would return fire in the
direction of the vehicle, thus endangering the lives of its other occupants. Id. at 875.
Also illustrative is the pre-code case of Sanders v. Commonwealth, 244 Ky. 77, 50
S.W.2d 37 (1932), which upheld the manslaughter conviction of a defendant who had
threatened his wife with a deadly weapon while they were in a moving vehicle, causing
her to jump from the vehicle to her death -- clearly a volitional act by the victim but a
probable and reasonably foreseeable consequence of the unlawful act of the
defendant.
-5-
In both Phillips and Sanders, a defendant applied unlawful force against another
whose volitional response to that force caused the victim’s death. The case sub iudice
is conceptually more similar to Lofthouse v. Commonwealth, Ky., 13 S.W.3d
236
(2000), which reversed the reckless homicide conviction of a defendant who applied no
force against the victim but supplied cocaine and heroin to the victim whose selfingestion of those drugs caused his death. The result reached by the plurality opinion
in Lofthouse did not turn on the fact that the victim died as a result of his own volitional
act. Rather, in reversing the conviction, the opinion emphasized the absence of any
evidence that the defendant knew or should have known that ingestion of those drugs
under those circumstances would probably cause the victim’s death. Id. at 241. Here,
as in Lofthouse, Appellant’s mens rea, i.e., what he knew or should have known with
respect to the probable consequences of his conduct, is crucial to determining the issue
of his criminal liability.
Analogous to this set of facts is the case where a person pursued by the police
in a high speed motor vehicle chase is held criminally liable for the death of an innocent
bystander accidentally struck by a pursuing police vehicle. &, People v. Schmies, 51
Cal.Rptr.2d 185 (Calif. Ct. App. 1996); State v. Anderson, 12 P.3d 883 (Kan. 2000);
State v. Lovelace, 738 N.E.2d 418 (Ohio Ct. App. 1999). In People v. Schmies, supra,
the California Court of Appeal directly addressed the effect of the police officers’
conduct vis-a-vis the criminal liability of the defendant.
[T]he negligence or other fault of the officers is not a defense to the
charge against defendant. The fact that the officers may have shared
responsibility or fault for the accident does nothing to exonerate defendant
for his role. In short, whether the officers’ conduct could be described with
such labels as negligent, careless, tortious, cause for discipline, or even
criminal, in an action against them, is not at issue with respect to the
defendant here. In this sense the “reasonableness” of the officers’
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conduct, focused upon their point of view and their blameworthiness for
the death, is not relevant.
The issue with respect to defendant focuses upon his point of view,
that is. whether the harm that occurred was a reasonably foreseeable
consequence of his conduct at the time he acted. Since the officers’
conduct was a direct and specific response to defendant’s conduct, the
claim that their conduct was a superseding cause of the accident can be
supported only through a showing that their conduct was so unusual,
abnormal, or extraordinary that it could not have been foreseen.
Id. at 193-94 (emphasis added). Although California does not have a statutory
equivalent of KRS 501.060, this common law analysis of causation is consistent with
the principles embodied in our statute. Did the defendant commit an illegal act that
induced the officer’s response? If so, was that response reasonably foreseeable by the
defendant at the time that he acted? The fault or negligence of the officer is not
determinative of the defendant’s guilt. However, the reasonableness of the officer’s
response is relevant in determining whether the response was foreseeable by the
defendant. The more reasonable the response, the more likely that the defendant
should have foreseen it. It is immaterial that the ultimate victim was the officer, himself,
as opposed to an innocent bystander.
Here, the conduct that supports Appellant’s conviction is not, as the
Commonwealth suggests, his own act of vaulting over the concrete barrier. Partin was
not present when that act occurred; thus, it was not reasonably foreseeable that he
would have vaulted over the barrier in reliance on the fact that Appellant had done so
without incident. (That analysis might have been appropriate if Officer Kane had fallen
from the bridge when he followed Appellant onto the walkway.) The conduct that
supports Appellant’s conviction is the continuation of his unlawful flight when he
obviously knew that Par-tin intended to pursue him (as evidenced by the fact that when
he saw Pat-tin’s vehicle stop, he reversed course and began running in the opposite
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direction), and that, to do so, Partin would be required to cross the open space between
the roadway and the walkway and thereby risk falling to his death. “The question of
whether [Appellant] knew or should have known [that Partin’s death] was rendered
substantially more probable by his conduct is an issue of fact.” KRS 501.060(4). There
was sufficient evidence in this case to present that fact to a jury. Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991).
II. JURY INSTRUCTIONS ON CAUSATION.
The trial judge gave the jury the basic instructions on manslaughter in the
second degree and reckless homicide, accompanied by the definitions of “wantonly”
and “recklessly,” as set forth at 1 Cooper, Kentuckv Instructions to Juries (Criminal) §§
3.28 and 3.29 (4th ed. Anderson 1993). Appellant did not object to the instructions and
did not request or tender a specific instruction on causation. RCr 9.54(2);
Commonwealth v. Duke, Ky., 750 S.W.2d
432, 433 (1988). However, we conclude that
the basic second-degree manslaughter and reckless homicide instructions do not
sufficiently frame the issue of causation as defined in KRS 501.060. The definitions of
wantonly and recklessly embody the “risk” element of KRS 501.060(3), but not the
“substantially more probable” element of KRS 501.060(3)(b). More appropriate
instructions on the issue of causation would have been substantially as follows:
INSTRUCTION NO. 1
SECOND-DEGREE MANSLAUGHTER
You will find the Defendant guilty of Second-Degree Manslaughter
under this Instruction if, and only if, you believe from the evidence beyond
a reasonable doubt that in this county on or about January 4, 1998 and
before the finding of the Indictment herein, he caused the death of
Michael Pat-tin by unlawfully fleeing from police apprehension,
AND
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A. That the Defendant was aware of and consciously disregarded
a substantial and unjustifiable risk that his conduct would result in Michael
Pat-tin’s death, and that his disregard of that risk constituted a gross
deviation from the standard of conduct that a reasonable person would
have observed in the same situation;
OR
B. That the death of Michael Partin occurred in a manner that the
Defendant knew was rendered substantially more probable by his
conduct.
INSTRUCTION NO. 2
RECKLESS HOMICIDE
If you do not find the Defendant guilty of Second-Degree
Manslaughter under Instruction No. 1, you will find him guilty of Reckless
Homicide under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt that in this county on or about
January 4, 1998 and before the Indictment herein, he caused the death of
Michael Pattin by unlawfully fleeing from police apprehension,
AND
A. That the defendant failed to perceive a substantial and
unjustifiable risk that his conduct would result in Michael Par-tin’s death,
and that the risk was of such nature and degree that his failure to perceive
it constituted a gross deviation from the standard of care that a
reasonable person would have observed in the same situation.
OR
B. That the death of Michael Partin occurred in a manner which
the Defendant should have known was rendered substantially more
probable by his conduct.
Nevertheless, the instructions given by the trial court were more favorable to
Appellant than those in the specimen instructions above because each of the trial
court’s instructions allowed the jury only one alternative for finding guilt instead of two.
Thus, they were not prejudicial to Appellant and would have afforded no basis for a new
trial even if the issue had been preserved. Baze v. Commonwealth, Ky., 965 S.W.2d
817, 823 (1997), cert. denied, 523 U.S. 1083 (1998).
The dissenting opinion, post, asserts that the respective paragraphs B of these
specimen instructions do not accurately describe the wanton or reckless mental states
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necessary for convictions of second-degree manslaughter or reckless homicide. In fact,
the culpable mental states described in KRS 501.060(3) are neither inconsistent nor
incompatible with those described in KRS 501.020(3) (definition of wantonly: “is aware
&f and consciously disregards a substantial and unjustifiable risk that the result will
occur”), and KRS 501.020(4)
(definition of recklessly: “fails to perceive a substantial
and unjustifiable j&k that the result will occur”). (Emphasis added.) Unfortunately, KRS
501.060(3) is written in double negatives which may account for some confusion.
Disregarding the double negatives, however, the statute authorizes a finding of
wantonness even if the actual result was not within the risk of which the actor was
aware if the actor knew (was “aware,” pursuant to the statute defining “knowingly,” KRS
501.020(2)) that the actual result was rendered substantially more probable by his
conduct; and authorizes a finding of recklessness even if the actual result was not
within the ri& which the actor should have oerceived if the actor should have known
(“perceived”) that the actual result was rendered substantially more probable by his
conduct. Thus, KRS 501.060(3)
contains alternative definitions of wantonness and
recklessness to those set forth in KRS 501.020(3)
and (4). Neither KRS 507.040
(manslaughter in the second degree) nor KRS 507.050 (reckless homicide) requires
reference to KRS 501.020 as the source of the definitions of wantonness and
recklessness. (The reason why we have not reached this conclusion “until today,”
dissent, post, at -, is because this is a case of first impression with respect to this
aspect of KRS 501.060.) The conduct element that the dissenting opinion perceives to
be missing from the specimen instructions is found in the first paragraph of each
specimen, i.e., “he caused the death of Michael Par-tin by unlawfully fleeing from police
-lO-
apprehension.” Subparagraphs A and B of each specimen contain the alternative
definitions of the mens rea elements of wantonness and recklessness.
Accordingly, the judgment of conviction and the sentence imposed by the Kenton
Circuit Court are affirmed.
Graves, Johnstone, and Wintersheimer, JJ., concur. Graves, J., also concurs by
separate opinion. Keller, J., dissents by separate opinion, with Lambert, C.J., and
Stumbo, J., joining that dissenting opinion.
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COUNSEL FOR APPELLANT:
Michael C. Lemke
Suite 876 - The Starks Building
455 S. Fourth Avenue
Louisville, KY 40202
COUNSEL FOR APPELLEE:
A. B. Chandler III
Attorney General
State Capitol
Frankfort, KY 40601
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: AUGUST 22,200O
TO BE PUBLISHED
2000-SC-0468-DG
StHAWNTA
ROBERTSON
v.
ON REVIEW FROM THE COURT OF APPEALS
1998-CA-2940
KENTON CIRCUIT COURT NO. 98-CR-132
COMMONWEALTH
OF
APPELLANT
KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE GRAVES
I concur with both Part I and Part II of the majority opinion. However, I write
s~patately
concerning Appellant’s culpability.
i”Jhether the act of running from an officer when one has been detarned,
star~d~rlg alone if it results in the officer’s death. would support a second-degree
rr\anslaughter
convection is a question we leave until another day. The act of vaulting
the gap between the roadway and the sidewalk is sufficiently wanton to support the
jury‘s verdict in this case. Appellant was aware of the danger of the gap and
co~~sciously
drsregarded it when he jumped. Knowing he was being pursued by at least
onf; officer on foot, Appellant had to assume any pursuing officer would attempt to
follow him, a!so becoming susceptible to the risk. A gap of nearly 4 feet across a drop
of 94 feet into moving water cannot be described as anything but a substantial
runjustifiable risk. It is certainly logical for the jury to conclude that. when Appellarrt
disregarded this risk to which he was subjecting those lawfully pursuing him, he grossly
deviated from the standard of conduct that a reasonable person would observe
RENDERED: AUGUST 22,2002
TO BE PUBLISHED
j$kqmwte &m-f a5 &xtfmkg
2000-SC-0468-DG
SHAWNTA ROBERTSON
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
1998-CA-2940
KENTON CIRCUIT COURT NO. 98-CR-132
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
Although I agree with the majority’s holding that the trial court properly denied
Appellant’s motion for a directed verdict of acquittal, I respectfully dissent from the
majority’s decision to affirm Appellant’s conviction. I would remand the case for a new
trial because - to use the majority’s own words - the trial court’s homicide instructions
did “not sufficiently frame the issue of causation as defined in KRS 501.060.“’ In
addition, I am greatly troubled that the sample instructions outlined in the majority
opinion permit a jury to find a defendant guilty of Second-Degree Manslaughter or
Reckless Homicide without finding that the defendant acted either wantonly or
recklessly as those terms are defined in KRS 501.020. In contrast to the majority’s view
that the Kentucky Penal Code’s causation provisions furnish an “alternative for finding
‘Majority Opinion at __ S.W.3d ,
(Slip Op. at 8).
guilt,“2 I believe that KRS 501.060(2) and (3) place a further limitation on the imposition
of criminal liability in addition to the requirement of a culpable mental state. Thus, those
provisions “adopt criteria for determining when factual causation is insufficient for
holding a defendant responsible for the results of his conduct (i.e., . . . ‘legal
causation’).“3 Accordingly, I challenge the majority’s conclusion that Appellant suffered
no prejudice from the trial court’s failure to instruct the jury as to KRS 501.060’s
limitations on criminal liability, and I would reverse Appellant’s conviction for SecondDegree Manslaughter and remand the case to the trial court for a new trial.
KRS 507.040(l) defines the offense of Second-Degree Manslaughter and states,
in relevant part, “[a] person is guilty of manslaughter in the second degree when he
wantonly causes the death of another person . . . .‘I4
Until today, this Court has always
held that “wantonly” as used in KRS 507.040(l) refers to the definition of the “wantonly”
culpable mental state contained in KRS 501.020(3).
Because the instruction proposed
by the majority opinion employs the disjunctive “OR” between subparagraphs (A) and
(B), however, a jury could find a defendant guilty of Second-Degree Manslaughter
under the proposed instruction without ever finding that the defendant was “aware of
and consciously disregard[ed] a substantial and unjustifiable risk’15 that his conduct
would result in another’s death or that “[t]he risk [was] of such nature and degree that
disregard thereof constitute[d] a gross deviation from the standard of conduct that a
‘Id. at - (Slip Op. at 9).
3Robert G. Lawson and William H. Fortune, Kentucky Criminal Law, § 2-4(a)(4),
at 65 (LEXIS 1998) (hereinafter “Lawson & Fortune”).
‘KRS 507.040(l) (emphasis added).
‘KRS 501.020(3).
reasonable person would observe in the situation.‘16
Although subparagraph (A)
defines “wantonly” substantially in accordance with KRS 501.020(3) - omitting,
however, the “of such nature and degree” language - the instruction permits a jury to
return a guilty verdict under subparagraph (B), which incorporates language from KRS
501.060 and reads “[tlhat the death of Michael Pat-tin occurred in a manner that the
Defendant knew was rendered substantially more probable by his conduct,” without
determining that Appellant acted wantonly with respect to Officer Par-tin’s death.
While
subparagraph (B) substantially paraphrases KRS 501.020(3)‘s “knowingly” culpable
mental state,7 the culpable mental state required for Second-Degree Manslaughter is
“wantonly,” not “knowingly.” And, unlike the other culpable mental states in KRS
501.020, the “knowingly” mental state “cannot serve as the culpable mental state for an
offense having a prohibited result as its essential element.“’ While I have focused here
upon the majority’s proposed Second-Degree Manslaughter instruction, I would criticize
its proposed Reckless Homicide instruction for the same reasons.
Accordingly, I
believe that the majority’s proposed jury instructions as well as its disposition of this
appeal betray a misunderstanding of KRS 501.060.
7Commonwealth v. Griffin, Ky., 759 S.W.2d 68 (1988).
“Commentary to KRS 501.020 (Banks/Baldwin 1974). The KRS 501.020(l)
definition of “intentionally” describes that mental state “with respect to a result or to
conduct described by a statute defining an offense[.]” (emphasis added) And, the KRS
501.020(3)&(4) definitions of “wantonly” and “recklessly” describe those mental states
“with respect to a result or to a circumstance described by a statute defining an
offense[.]” (emphasis added). In contrast, the KRS 501.020(2) definition of “knowingly”
does not contain the word “result” and instead describes that mental state “with respect
to conduct or to a circumstance defined in a statute defining an offense[.]”
-;-
KRS 501.060 defines the causal relationships for which the Kentucky Penal
Code permits the imposition of criminal sanctions:
(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 of the
contemplation of the actor unless:
The actual result differs from that
(4
intended or contemplated, as the case
may be, only in the respect that a
different person or different property is
injured or affected or that the injury or
harm intended or contemplated would
have been more serious or more
extensive; or
The actual result involves the same kind
@I
of injury or harm as that intended or
contemplated and occurs in a manner
which the actor knows or should know is
rendered substantially more probable by
his conduct.
When wantonly or recklessly 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 or, in the case of
recklessness, of which he should be aware unless:
The actual result differs from the
(a>
probable result only in the respect that a
different person or different property is
injured or that the probable injury or
harm would have been more serious or
more extensive than that caused; or
The actual result involves the same kind
09
of injury or harm as the probable result
and occurs in a manner which the actor
knows or should know is rendered
substantially more probable by his
conduct.
-4-
(4
The question of whether an actor knew or should
have known the result he caused was rendered
substantially more probable is an issue of fact9
KRS 501.060’s provisions relating to legal causation were adapted from Model
Penal Code 5 2.03, and, KRS 501.060(2)(b) and (3)(b), like the corresponding
provisions in the Model Penal Code,” are designed “to exclude situations in which the
manner in which the actual result occurs, or the nature of the actual result, is so remote
9KRS 501.060.
‘OThe Model Penal Code provisions that correspond to KRS 501.060(2)(b) and
(3)(b) and that address variances between the manner in which a prohibited result
actually occurred and that contemplated or wantonly or recklessly risked, read:
(2)
When purposely or knowingly causing a particular
result is an element of an offense, the element is not
established if the actual result is not within the
purpose or the contemplation of the actor unless:
the actual result involves the same kind
of injury or harm as that designed or
contemplated and is not too remote or
accidental in its occurrence to have a
Ljust] bearing on the actors liability or on
the gravity of his offense.
When recklessly or negligently 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 or, in the case of negligence,
of which he should be aware unless:
iti
(3)
6)
the actual result involves the same kind
of injury or harm as the probable result
and is not too remote or accidental in its
occurrence to have a Ijust] bearing on
the actor’s liability or on the gravity of
his offense.
MODEL PENAL CODE § 2.03 (Official Draft and Revised Comments 1985) (hereinafter
“MPG’). In contrast, KRS 501.060(2)(b) and (3)(b) utilize language from an alternative
draft of the Model Penal Code. See MODEL PENAL CODE § 2.03(2)(b), (3)(b) (Tent. Draft
No. 4, 1955) (bracketed alternative formulation). Other than Kentucky, only Arizona has
chosen this alternative language. See ARIZ. REV. STAT. ANN. § 13-203 (2001).
-j-
from the actor’s purpose or contemplation that it should have no bearing on the gravity
of the offense for which he is convicted.“” The 1974 Commentary to KRS 501.060
reflects that the drafters of the Kentucky Penal Code recognized that, under some
circumstances, an actor with a requisite culpable mental state could, under a “but-for”
analysis, factually “cause” a prohibited result, but should not be criminally sanctioned
for that result:
This section deals with one of the most difficult problems
in criminal law, that of causation. For an intelligible
description of this provision and its purposes, a general
statement of the law of causation to serve as a frame of
reference is essential. That statement should begin with this
proposition: any antecedent which contributes to a given
result can be said as a matter of fact to have caused that
result. For example, the birth of a person can be said to
have caused his death even though the immediate deathcausing act was one of shooting. In distinguishing between
antecedents which should receive juridicial consideration as
“MPC § 2.03, comment 3 at 261 (emphasis added). “Actual result” is a term
“meant to be contrasted with the designed or contemplated (or in the case of
Subsection (3), the probable) result in terms of its specific character and manner of
occurrence.” MPC § 2.03, n. 13. See also Note: Causation in the Model Penal Code,
78 Columbia L.R. 1249, 1266 (1978):
While causation in fact represents a minimum precondition
for a finding of liability, it is not in itself sufficient to establish
liability, nor does it become adequate when supplemented
by the culpability requirements of the offense in question.
Hence special provisions are called for that prevent an actor
from being held responsible when the outcome of his
conduct differs greatly from that anticipated or risked, but
that ensure liability when the divergence between the
anticipated and actual outcome are sufficiently slight to be
legally immaterial.
Id. (footnote omitted); Lawson & Fortune, supra note 3 at § 2-4(c)(3) at 69 (“KRS
501.060 is derived from the Model Code. It adopts one criterion by which causation
questions are to be judged, requires no consideration of pre-existing physical conditions
(or other specific factors), and clearly lays a foundation for a fresh approach to
causation problems in Kentucky.“).
-6-
a cause in penal law and those which should not, the courts
have classified causes as remote and proximate with only
the latter sufficing for criminal liability. To be classified as a
“proximate cause,” generally recognized as a flexible
standard, an antecedent must constitute a “substantial
factor” in bringing about the result in issue. . . .
Once an act is found to be a cause in fact of a result and a
substantial factor in bringing about that result, it is
recognized as the proximate cause unless another cause,
independent of the first, intervenes between the first and the
result. And even then the first cause is treated as the
proximate cause if the harm or injury resulting from the
second is deemed to have been reasonably foreseeable by
the first actor.
In attempting to deal with this law and the problem it
represents. KRS 501.060, in its first subsection, starts with
a simple rule of causation and an underlying judgment that
many of the matters now treated as “causation” questions
should be dealt with as problems of mens rea. The reason
for this judgment can be best shown by use of the first
example of the second preceding paragraph. It can be said
that a person who gave birth to the victim of a homicide
caused the death of that victim even though the immediate
death-causing act was committed by another. Without the
birth of the victim, the result in question would not have
occurred. However, under no theory of mens r-ea can it be
said that the mother of the victim had a criminal state of
mind in causing the death. By treating such matters as
mens rea problems, subsection (1) eliminates the need of
distinguishing between “remote” and “proximate” causes
and the difficulty inherent in the distinction.
Subsection (2) deals in specific terms with the situation in
which an actual result of criminal conduct varies from the
result intended bv a defendant. It first establishes a qeneral
princiole that when such variation exists, “intentionally,” as
the essential element of culpability. cannot be shown. Then
the subsection creates two exceptions to the aeneral
princiole. The first of which provides for two instances in
which a variation between actual results and intended
results is inconsequential: when the variation is that a
different person or different property than intended is injured
or affected by the criminal act (e.g., D. shoots at A with
intent to kill him but instead kills B); and when the variation
involves an actual injury or harm less serious or extensive
than what was intended (e.g., D. shoots at V, intending to kill
him, but instead only injures him). The second exception to
the general orinciole deals with the situation where an actual
-7-
iniurv is the same as an intended injury but occurs in an
“unintended” manner. To illustrate: suopose that D shoots
his wife with intent to kill: that while in a hospital for
treatment she contracts an unrelated disease. and that she
ultimatelv dies as a result of that disease. Under preexisting doctrine, D’s responsibility for this result depended
upon whether the disease was considered an “independent
intervening cause” and, if so, whether the result it caused
was considered to have been “reasonably foreseeable.”
Under this subsection, D’s responsibilitv depends on
whether the triers of fact find that his wife’s death occurred in
a manner which he knew or should have known was
rendered substantiallv more probable bv his conduct. With
this change in approach there is an express
acknowledgment [subsection (4)] that the ultimate
responsibility for determining whether an actual result is too
far removed from an intended result to impose criminal
liability must be left for the triers of fact.
Subsection (3) deals in specific terms with the situation in
which an actual result of criminal conduct is outside a risk of
which an actor was aware, if he acted wantonly, or of which
he should have been aware, if he acted recklessly. It has
the same general principle and the same exception as
contained in subsection (2); therefore the matters stated in
the precedina paraaraeh are equally applicable to this
subsection.‘2
I believe it is important to emphasize that KRS 501.060 acts as a limitation on
criminal liability in situations where a defendant otherwise intentionally, wantonly, or
recklessly causes another person’s death or physical injury or damage to property.
KRS 501.060 represents a legislative policy determination that “[wlhen the requirement
of ‘proximate causation’ dissociates the actor’s conduct from a result of which it is a butfor cause, . . . the actor’s culpability with respect to the result . . . is such that it would be
unjust to permit the result to influence his liability or the gravity of his offense.“13
In
other words, “legal causation,” although now conceptualized by KRS 501.060 as an
“Commentary to KRS 501.060 (Banks/Baldwin 1974).
“MPC 5 2.03, comment 2 at 258.
-8-
issue of mens rea or culpability, nevertheless operates to exclude criminal liability in
cases where the defendant would otherwise have committed an offense, but “common
sense notions of responsibility for the occurrence of results”‘4 dictate that the imposition
of criminal liability is inappropriate.
In Lofthouse v. Commonwealth,‘5 this Court observed that KRS 501 .060(3)
frames the issue of causation “in terms of whether or not the result as it occurred was
either foreseen or foreseeable by the defendant as a reasonable probability.“‘6 For
instance, a defendant who shoots a rifle at his wife with the intention of killing her will absent some other consideration such as a belief in the need to resort to self protection
- be liable for Murder if a bullet strikes and kills her. KRS 501.060(2)(b), however,
would likely exclude homicide liability in many cases where the defendant’s aim was
poor, but the defendant’s conduct was nonetheless technically a “but-for” cause of his
wife’s death - e.g., where, because of the defendant’s attempt upon her life, the wife
vacates the marital residence and moves to a new home in the country and is later
killed in a fall from a horse” or perishes in a fire when her new home burns down.18
And, while a drunken driver may commit Second-Degree Manslaughter by consciously
ignoring the risk that he might kill the occupants of another vehicle in a collision if a
“Nofe: Causation in the Model Penal Code, supra note 11 at 1260. See also
Lawson & Fortune, supra note 3 at 92-4(c)(3) at 70 (characterizing the KRS 501.060(2)
and (3) determination as an “additional inquiry into the fairness of holding the defendant
accountable for the [result].“).
“KY., 13 S.W.3d 236 (2000).
‘GM at 239 (quoting Lawson & Fortune, supra note 3 at § 2-4(d)(3) at 74)
“a MPC § 2.03, comment 2 at 258
‘“See Note: Causation in the Model Penal Code, supra note 11 at n.53 (citing
MODEL PENAL CODE § 2.03, Comment at 134 (Tent. Draft No. 4, 1955)).
-9-
collision and death occur, KRS 501.060(3)(b) requires a jury to address foreseeability
issues if the drunken driver collides with another vehicle without causing injury to the
second vehicle’s occupants, but those occupants are pinned within their vehicle and
later devoured by a passing ravenous bear.”
Accordingly, where the evidence at trial presents an issue of fact as to whether
the manner in which a prohibited result occurred was different from that intended or
wantonly or recklessly risked - and only where the evidence presents such an issue the trial court’s instructions must frame the foreseeability issue for the jury.
Because I
believe the jury instructions proposed in the majority opinion are erroneous, I believe
that the trial court in this case should have instructed the jury substantially as follows:
INSTRUCTION NO. 1
SECOND-DEGREE MANSLAUGHTER
You will find the defendant guilty of Second-Degree Manslaughter under
this Instruction if, and only if, you believe from the evidence beyond a
reasonable doubt that in this county on or about January 4, 1998 and
before the finding of the indictment herein, he caused the death of
Michael Pat-tin by fleeing from police apprehension,
AND
That in so doing:
A.
The Defendant was aware of and consciously disregarded a
substantial and unjustifiable risk that his conduct would cause
Michael Pat-tin to fall to his death through the opening between the
roadway and the bridge, and that this risk was of such nature and
degree that the Defendant’s disregard of it constituted a gross
deviation from the standard of conduct that a reasonable person
would observe in the situation.
OR
‘“See United States v. Main, 113 F.3d 1046, 1049 (gth Cir. 1997) (using the bear
as an example).
-IO-
B.
(1) The Defendant was aware of and consciously disregarded a
substantial and unjustifiable risk that his conduct would result in
Michael Pat-tin’s death in some manner other than a fall through the
opening between the roadway and the bridge, and that this risk was
of such nature and degree that the Defendant’s disregard of it
constituted a gross deviation from the standard of conduct that a
reasonable person would observe in the situation.
AND
(2) Michael Partin’s death occurred in a manner which
Defendant knew or should have known was rendered
substantially more probable by his conduct.
INSTRUCTION NO. 2
RECKLESS HOMICIDE
You will find the defendant guilty of Reckless Homicide under this
Instruction if, and only if, you believe from the evidence beyond a
reasonable doubt that in this county on or about January 4, 1998 and
before the finding of the indictment herein, he caused the death of
Michael Partin by fleeing from police apprehension,
AND
That in so doing:
A.
The Defendant failed to perceive a substantial and unjustifiable risk
that his conduct would cause Michael Pat-tin to fall to his death
through the opening between the roadway and the bridge, and that
this risk was of such nature and degree that the Defendant’s failure
to perceive it constituted a gross deviation from the standard of
conduct that a reasonable person would observe in the situation.
OR
B.
(1) The Defendant failed to perceive a substantial and unjustifiable
risk that his conduct would result in Michael Pat-tin’s death in some
manner other than a fall through the opening between the roadway
and the bridge, and that this risk was of such nature and degree
that the Defendant’s failure to perceive it constituted a gross
deviation from the standard of conduct that a reasonable person
would observe in the situation.
AND
-ll-
(2) Michael Pat-tin’s death occurred in a manner which
Defendant knew or should have known was rendered
substantially more probable by his conduct.
By proposing instructions that permit a jury to return a guilty verdict upon a
finding only that the manner in which the result occurred was either foreseen or
foreseeable to the defendant, however, the majority apparently interprets KRS
501.060(3)‘s “the element is not established . . unless” language as an alternative
formulation of the culpable mental states defined in KRS 500.020(3) and (4). Stated
differently, the structure of the majority’s proposed instructions reflects either that the
majority has either: (1) overlooked the necessity of requiring a wanton or reckless
culpable mental state; (2) concluded that a defendant who acts “knowingly” also acts
“wantonly” despite every indication to the contrary in the Kentucky Penal Code; or most
likely, (3) has interpreted KRS 501.060(3)‘s curious grammar as if it read “the element
b established . . . when” and has equated Appellant’s actual or imputed knowledge that
the manner in which Michael Pat-tin’s death occurred “was rendered substantially more
probable by his conduct” with wantonness and recklessness. I find a number of
problems and pitfalls with the majority’s interpretation.
First, other provisions and commentary to the Kentucky Penal Code caution
against such an interpretation. Specifically, KRS 500.01 O(1) defines “culpable mental
state” as “‘intentionally’ or ‘knowingly’ or ‘wantonly’ or ‘recklessly’ as those terms are
defined in KRS 501.020.“20
KRS 501.050 states that a person can be guilty of a
criminal offense “without having one (1) of the culpable mental states defined in KRS
‘OKRS 500.010(1)
(emphasis added).
-12-
501.020”*’ only when the offense is a violation or misdemeanor without a defined
culpable mental state** or when the offense is defined outside of the Kentucky Penal
code and “the statute clearly indicates a legislative purpose to impose absolute liability
for the conduct described.“23
Second-Degree Manslaughter does not fall within either
exception. In addition, the 1974 Commentary to KRS 501.020 reads: “[nleither
‘wantonness’ nor ‘recklessness’ can be used to impose criminality upon conduct unless
the following two elements are shown fo exist: a substantial and unjustifiable risk that a
result described in a penal statute will occur . . . and a gross deviation from the
standard of conduct that a reasonable person would observe in the situation.“24
As
subparagraph (B) of each the majority’s proposed jury instructions permits a jury to find
a defendant guilty of Second-Degree Manslaughter or Reckless Homicide without
finding that the defendant acted wantonly or recklessly with respect to the victim’s
“KRS 501.050 (emphasis added)
“KRS 501.050(l).
‘“KRS 501.050(2).
“‘Commentary to KRS 500.020 (Banks/Baldwin 1974) (emphasis added).
& Commentary to KRS 507.020 (Banks/Baldwin 1974):
The two offenses described by these provisions, murder
by KRS 507.020(1)(b) and manslaughter in the second
degree by KRS 507.040, have three elements in common:
the conduct in question must have involved a substantial
and unjustifiable risk of death to human life; the defendant,
in causing the death in question, must have consciously
disregarded that risk, and his disregard must have
constituted “a gross deviation from the standard of conduct
that a reasonable person would [have observed] in the
situation.” Taken together, these three elements constitute
the culpable mental state defined in KRS 501.020 as
“wantonness” . . . .
Id. (emphasis added).
-13-
S~LZ
death, I believe those instructions are erroneous. Simply put, the language of KRS
501.060(3)(b) and KRS 501.020(3) are not interchangeable - a defendant’s conscious
disregard or reckless ignorance of a risk he or she knows or should know is rendered
substantially more probable by his or her conduct does not necessarily “constitute[] a
gross deviation from the standard of conduct that a reasonable person would observe
in the situation.“25
Accordingly, the majority’s proposed instructions short-circuit the
KRS 501.020 definitions of wantonly and recklessly.
Second, although the specific issue before the Court appears to be a question of
first impression, the courts in Arizona - the other jurisdiction that adopted the
alternative Model Penal Code version of Subsections (2)(b) and (3)(b) - have
conceptualized the “legal causation” inquiry as distinct from the determination of
whether the defendant possessed a culpable mental state.26
Finally, and perhaps most important, I believe the majority’s interpretation of
KRS 501.060(3)‘s “the element is not established . . . unless” language overlooks KRS
“KRS 501.020(3).
16a State v. Marty, 801 P.2d 468 (Ariz.App. 1990):
There is abundant evidence in the record that the
defendant acted “recklessly” as defined in A.R.S. $j 13-l 05.
. ‘The more difficult question is whether the entire record
contains some basis for finding that defendant’s reckless
behavior proximately and in fact caused Nuanez’s death. In
Arizona, both “but-for” causation and proximate cause must
be established in a criminal case.
Id. at 471 (emphasis added and citations deleted). See also State v. Cocio, 709 P.2d
1336 (Ariz. 1985) (approving the trial court’s legal causation separate instruction and
finding that the trial court’s failure to instruct the jury as to A.R.S. § 13-203(C)(2)
[Arizona’s parallel provision to KRS 501.060(3)(b)] was not error because the case did
not present a factual discrepancy between the actual and probable risks).
-14
501.060’s identical provision for result offenses requiring an intentional mental state. If,
standing alone, actual or imputed knowledge that a result will occur in a manner
rendered substantially more probable by the defendant’s conduct constitutes
“wantonness” or “recklessness,” what of KRS 501.060(2)(b)?:
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:
id,’
The actual result.involves the same kind of injury or
harm as that intended or contemplated and occurs in
a manner which the actor knows or should know is
rendered substantially more probable by his
conduct.27
Stated otherwise, if the majority correctly interprets KRS 501.060(3)(b)‘s “the element is
not established . . . unless” language as an alternative articulation of the “wantonly” and
“recklessly” culpable mental states, the same must hold true for KRS 501,060(2)(b),
and an actor with actual or imputed knowledge that the manner in which the result
actually occurred was rendered substantially more probable by his conduct would also
have acted “intentionally.” And, if that is the case, the same jury finding as to
foreseeability could constitute two or three different culpable mental states. The logical
response to this paradox is that, while the two inquiries are no doubt interrelated, a KRS
501.060(2)(b) or (3)(b) finding is neither interchangeable nor co-extensive with the jury’s
determination of the defendant’s culpable mental state. In my opinion, the 1974
Commentary to KRS 501.060 illustrates that the jury’s subsection (2)(b) or (3)(b)
foreseeability determination occurs subsequent to its determination of whether a
defendant possessed a culpable mental state by intending or risking a prohibited result:
‘-KRS 501.060(2)(b) (emphasis added).
-15
To illustrate: suppose that D shoots his wife with intent to
kill; that while in a hospital for treatment she contracts an
unrelated disease, and that she ultimately dies as a result of
that disease. . . Under this subsection, D’s responsibility
depends upon whether the triers of fact find that his wife’s
death occurred in a manner which he knew or should have
known was rendered substantially more probable by his
conduct.28
As such, KRS 501.060(2)(b) and (3)(b) require an independent jury determination of
foreseeabilty only afier a factual determination has been made that the defendant
intended (or wantonly or recklessly risked) the same kind of injury or harm in a different
manner.
And, as defined by statute, the foreseeability inquiry is the same - whether
the defendant “knew or should have known” that the prohibited result was rendered
substantially more probable by his conduct - regardless of whether the culpable
mental state necessary for a result offense is “intentionally,” “wantonly,” or “recklessly.”
Because I view KRS 501.060(3)(b) not as an “alternative for finding guilt,” but as
a separate limitation on the imposition of criminal liability for wantonly or recklessly
risked results that occur in unforeseen manners, I disagree with the majority’s
conclusion that the trial court’s failure to instruct the jury as to the foreseeability
question was harmless. KRS 501.060(4)
establishes that the question of whether the
manner in which Officer Par-tin was killed was within the foreseeable risks created by
Appellant’s conduct “is an issue of fact”” appropriate for jury resolution. However, the
trial court’s instructions in this case neither required nor permitted the jury to answer this
factual question, and “[wlhen a jury is not told that it must find that the victim’s death
was within the risk created by the defendant’s conduct an element of the crime has
‘8Commentary to KRS 501.060 (Banks/Baldwin 1974) (emphasis added).
‘“KRS 501.060(4).
-16-
been erroneously withdrawn from the jury.“3o
The central question at trial in this case
was whether Appellant was criminally liable for Officer Pat-tin’s death, and, by omitting
the inquiry required by KRS 501.060(3)(b), the trial court’s jury instructions simply failed
to present that issue adequately to the jury. As such, the jury could easily have
predicated its finding of guilt on its belief that Appellant consciously disregarded not the
risk that Officer Partin would fall to his death, but rather a risk that Officer Par-tin or
another officer would be killed in another manner - e.g., by automobile traffic on the
bridge (a theory the Commonwealth’s brief advances as support for the trial court’s
ruling on Appellant’s motion for directed verdict).
Although Appellant did not tender
proper jury instructions or otherwise preserve this error for our review, I believe “a
substantial possibility exists that the result would have been . . differenV3’
if the trial
court had properly instructed the jury. Thus, I would reverse the judgment of the
Kenton Circuit Court and remand this indictment to the trial court for retrial on the
charge of Second-Degree Manslaughter under proper instructions.
Lambert, C.J. and Stumbo, J., join this dissent.
3”United States v. Main, supra note 19 at 1050.
“Jackson v. Commonwealth, Ky.App., 717 S.W.Zd
-17-
511, 514 (1986).
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