LINDSEY (BILLY J.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000553-MR
BILLY J. LINDSEY
v.
APPELLANT
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 05-CR-00012
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KELLER AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant, Billy Lindsey, seeks to reverse the Edmonson
Circuit Court’s order denying his motion to vacate and set aside judgment pursuant
to Rule of Criminal Procedure (RCr) 11.42. Lindsey alleges that the jury
instruction for duress used at trial called for an overly stringent standard.
However, there is not a reasonable probability that the outcome of the case would
have been different if the proper standard were used. Therefore, we affirm.
Lindsey was convicted of complicity to commit burglary in the third
degree, complicity to commit criminal mischief in the second degree, and
persistent felony offender in the second degree. The conviction resulted from the
burglary of a pharmacy by Donnie Cannon, an individual who at that time was
living with Lindsey’s daughter-in-law, Julie Lindsey.
On August 6, 2004, Lindsey made a statement to the police regarding
the pharmacy burglary. He indicated he had discussed the burglary with Cannon
and suggested which drugs to steal. Lindsey also admitted he gave Cannon a saw
to assist him in cutting the shop’s roof open, and that he and Julie drove Cannon to
a location near the shop prior to the burglary.
After dropping Cannon off, Lindsey returned home and listened to a
police scanner in order to warn Cannon of any police activity. He communicated
with Cannon via a hand-held radio. During the burglary, the shop’s alarm sounded
and Cannon fled. Lindsey and Julie went by vehicle to pick up Cannon, but ran
out of gas on the way. They subsequently returned home to find Cannon there
waiting for them. Lindsey gave Cannon a change of clothes.
Julie, who was also implicated in the crime, initially gave a similar
statement to police. She did not indicate that Cannon threatened her or that her
involvement in the crime was a result of coercion by Cannon. However, a couple
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of days after this initial statement, Julie gave a second statement indicating her
involvement resulted from threats made by Cannon against her and her child.
At trial, both Lindsey and Julie Lindsey testified that their
involvement in the crime resulted from duress. They testified that Cannon had
threatened Julie and her son. There were few specifics given at trial regarding the
circumstances of the threats. Julie did testify that Cannon had threatened to tape
her infant son to a chair and that Cannon struck her. Lindsey claims to have
witnessed Cannon striking Julie. Lindsey also recalled hearing Cannon threatening
Julie, but was uncertain as to what was said or when the threats occurred. He
testified he could not recall any of the events due to medication he was taking at
the time. However, he did indicate that the statements made in his statement to the
police were true and accurate.
Lindsey testified that he feared for his life and the safety of Julie and
his grandson. An instruction on duress was provided to the court by Lindsey’s
counsel. Lindsey alleges that the instruction’s language was improper.
The instruction required the jury to find that “Cannon coerced
[Lindsey] to aid and assist in committing a burglary and criminal mischief by
threatening his life if he did not do so.” Lindsey avers that this instruction required
an overly stringent standard that is not required by the duress statute. As a result of
this mistake, he alleges he did not receive effective assistance of counsel and was
denied due process.
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Even if Lindsey’s counsel was ineffective, still he “must show that the
deficient performance prejudiced the defense. This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 2064
(1984). In other words, “[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. With this
standard in mind we turn to the alleged error.
Kentucky Revised Statute (KRS) 501.090 dictates that:
1) in any prosecution for an offense other than an
intentional homicide, it is a defense that the defendant
engaged in the proscribed conduct because he was
coerced to do so by the use of, or a threat of the use of,
unlawful physical force against him or another person
which a person in his situation could not reasonably be
expected to resist.
2) The defense provided by subsection (1) is unavailable
if the defendant intentionally or wantonly placed himself
in a situation in which it was probable that he would be
subject to coercion.
KRS 501.090. The standard set forth in the statute is substantially less stringent
then the standard used at trial. The jury instruction required that Lindsey feared
losing his own life. The statute however, only requires that Lindsey feared a threat
of unlawful physical force and does not require that the threat of physical force be
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deadly force, or that the force be directed at him. In this case, the majority of the
alleged threats were directed at Julie Lindsey and her son.
Assuming Lindsey’s counsel was ineffective for proffering this
instruction, it is necessary to consider whether this error was harmless. In order for
the error to warrant reversal there must be a reasonable probability that the
outcome of the case would have been different if the proper instruction were given.
A defense of duress requires not only that Lindsey be coerced by an
unlawful threat of physical force against himself or another person, the coercion
must be such that “a person in his situation could not reasonably be expected to
resist.” KRS 501.090 (1).
In Bates v. Commonwealth, an individual claimed that his escape from
prison was coerced by threats made against him by other prisoners. Bates v.
Commonwealth, 145 S.W.3d 845, 846 (Ky.App. 2004). The court determined that
he was not entitled to an instruction on duress because there was “nothing in the
evidence that anyone coerced or forced Bates to commit the act of escape.” Id. at
847. In addition, the court determined that he could reasonably have been
expected to resist the coercion. Id. 847-48. Specifically, Bates could have avoided
the threats by utilizing the protection of prison officials rather than engaging in
criminal conduct. Id.
Likewise, in this case, there is little evidence to support Lindsey’s
assertion that he was coerced into committing the crime. Lindsey was unable to
recall when or where the threats were made. Nor was he able to recall what was
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said. Further, Lindsey did not mention the threats in his statement to the police and
did not then allege that Cannon had coerced his involvement. Despite Lindsey’s
testimony that he feared Cannon, he was not too frightened to implicate him in his
statement to the police.
Even if the alleged coercion did occur, Lindsey had multiple
opportunities to free himself and his daughter-in-law from the coercion; he simply
needed to call the police. The testimony indicates that there were multiple
occasions when Lindsey and Julie were not in Cannon’s presence, including the
time Cannon was actually in the pharmacy. One could expect that a reasonable
person would have taken the opportunity to call for help if he were being coerced
to commit a crime against his will.
Given the multiple opportunities that Lindsey had to resist the
coercion, Lindsey could not have succeeded on his claim for duress upon this
record. Thus, there is not a reasonable probability that the outcome of his case
would have been different if the correct standard was used. Any error that
occurred was harmless and the decision of the circuit court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Dixon Bullock
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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