SAMUEL STEVEN FIELDS V. COMMONWEALTH OF KENTUCKY
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TO BE PUBLISHED
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SAMUEL STEVEN FIELDS
V.
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, SPECIAL JUDGE
97-CR-6
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
During the early morning hours of August 19, 1993, Bess Horton was murdered
in the bedroom of her home in Grayson, Kentucky. Her throat was slashed, and she
was stabbed in the head with such force that the knife buried to the hilt in her right
temple and the point of the blade protruded from her left temple. Officers Ron
Lindeman and Larry Green of the Grayson Police Department were in the
neighborhood investigating a suspected burglary when they saw a light in the Horton
residence. Lindeman entered Mrs. Horton’s bedroom through an open window and
discovered her body lying in her bed. He also encountered Appellant Samuel Fields in
the bedroom in possession of a knife, two razor blades, and numerous items of Mrs.
Horton’s jewelry. Following a trial by jury in the Rowan Circuit Court, Appellant was
convicted of Horton’s murder and sentenced to death. He appeals to this Court as a
matter of right. Ky. Const. § 110(2)(b). We reverse for a new trial, because (1) the jury
was permitted to hear the recorded narrative of a staged videotaped reenactment of
Lindeman’s investigation of the crime scene, and (2) the trial judge erroneously failed to
instruct the jury on manslaughter in the second degree as a lesser included offense of
murder.
I. FACTS.
Appellant’s girlfriend, Minnie Burton, acted as a chauffeur for Mrs. Horton and
ran errands for her when requested. In exchange, Horton allowed Burton to live rentfree in a duplex apartment located near Horton’s residence. There was evidence that
Horton decided to evict Burton and that she cut off the water to Burton’s apartment,
forcing her to spend nights at the homes of friends. There was also evidence that
Burton had remarked that “someone ought to kill (Horton),” and that she had told a
friend, Phyllis Berry, that Horton kept a metal box containing $4,000.00 in her bedroom.
This latter information became significant when another witness testified that Berry had
confessed to him that she and Minnie Burton went to Horton’s residence to steal the
metal box and that she (Berry) killed Horton when Horton awoke during the burglary
and recognized Burton.
From about noon on August 18, 1993 until after midnight, Appellant, Minnie
Burton, Phyllis ‘Berry, and others drove around Carter and Boyd Counties, consuming
large amounts of alcohol, mostly beer. The group made two separate trips to Ashland
to purchase several cases of beer. They stopped at the residence of Phyllis Berry’s
brother in Boyd County, where Appellant drank some whiskey and ingested some
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“horse tranquilizers.” Appellant and Burton finally returned to Grayson with the intention
of spending the night at a residence occupied by Appellant’s mother and brother. After
entering the residence, Appellant continued drinking beer and began quarreling with
Burton. When he began throwing food, furniture and other objects, including knives,
around the kitchen, Burton fled the residence and told Appellant she was going to her
apartment. After destroying some more personal property and threatening his brother
with a knife, Appellant broke the glass on the kitchen door with his fist, causing
lacerations of his right arm. After retrieving several more cans of beer, Appellant
proceeded to Burton’s apartment.
Burton had been unable to gain entry to her apartment, because Elmer Prichard,
the other resident of the duplex, had locked the doors. Appellant arrived and told
Burton that he had killed his brother (which he had not), and asked her if she would
dispose of the alleged murder weapon. He gave Burton a knife, which she threw into
some nearby bushes. Appellant then went into “a frenzy” and attempted to gain entry
to Burton’s apartment by ripping the screens off of the windows. Burton again fled.
Elmer Prichard called the police and Officers Lindeman and Green responded to the
call. Appellant testified that he then proceeded to the Horton residence looking for
Burton, because Burton had told him of her intention to “rob” Horton. He sat on
Horton’s porch for a while drinking beer, then entered Horton’s bedroom through an
open window. He turned on his cigarette lighter for illumination and saw that the room
had been ransacked. However, he did not notice Horton’s body on the bed. He then
began pocketing whatever he could find, including jewelry and a knife.
While investigating the attempted burglary of the duplex, Officers Lindeman and
Green noticed a light inside the Horton residence. They found the garage door open,
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but the inside door locked. Lindeman then discovered the open window and climbed
inside, where he found both Horton’s body and Appellant. Some jewelry, a knife, and
two razor blades either fell from or were removed from Appellant’s pockets. According
to Lindeman, he offered to read Appellant his Miranda rights, but Appellant was able to
recite them verbatim. Appellant then stated: “Kill me, Ron. Kill me. I stabbed her and
I’m into it big this time.” Lindeman testified that when he asked Appellant why he had
killed Horton, Appellant replied: “I don’t know. Kill me Ron. I’m going to prison for the
rest of my life this time.” Appellant denied uttering these statements. His. version was
that Lindeman jumped on him and knocked him to the floor, then put a gun to his head,
accused him of killing Horton, and threatened to shoot him.
Appellant was arrested and transported by Kentucky State Trooper Roy Wolfe to
King’s Daughters’ Medical Center in Ashland for treatment of injuries to his right arm.
Wolfe testified that in his opinion, Appellant was intoxicated.
After Appellant was removed from the crime scene, Officer Lindeman and an
unidentified cameraman staged a lengthy and dramatic videotaped reenactment of the
investigation leading up to Appellant’s arrest and alleged confession. The cameraman
filmed Lindeman as he retraced his route from the duplex apartment to the Horton
residence, to the open garage door, then through the open window and into the
bedroom. As he led the cameraman through the reenactment, Lindeman narrated
where he was, what he was doing, and why. He also described Officer Green’s
locations and activities. After entering the bedroom during the reenactment, Lit-r&man
used his flashlight to demonstrate how he drew his gun on Appellant. He narrated how
the jewelry, the knife, and the razor blades had either fallen or been removed from
Appellant’s pockets, and repeated verbatim Appellant’s confession to murdering Mrs.
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Horton. The camera was then panned around the bedroom to the jewelry, the knife,
and the razor blades, then to some blood on the carpet which Lindeman described as
Appellant’s blood. Finally, the camera was focused on the bed where Mrs. Horton’s
body still lay, her throat slashed and the knife still buried in her right temple. The
camera continued to focus on Mrs. Horton’s wounds for approximately forty seconds
until the video was concluded.
Appellant was treated in the emergency room at King’s Daughters’ Medical
Center for some minor lacerations of his right arm. No stitches were required.
Appellant was examined by Jason Dobson, an emergency medical technician (EMT),
who opined at trial that there was too much blood on Appellant’s arms and clothing to
have been caused by such minor injuries. Dobson also testified that he asked
Appellant how he got the blood on him and that Appellant responded: “You stupid
s.o.b., if you had just killed some lady, you would be covered with blood, too.” The
blood on Appellant’s arm was washed off at the hospital. Subsequent blood typing and
DNA testing revealed that none of the blood found on Appellant’s clothing was
traceable to Mrs. Horton and none of the blood found on Horton’s bed was traceable to
Appellant.
II. VIDEOTAPED EVIDENCE.
Appellant moved in limine to suppress the videotaped reenactment of
Lindeman’s investigation, or, in the alternative, to suppress the audio narrative portion
thereof, especially Lindeman’s repetition of Appellants alleged confession. The motion
was overruled and the videotape was played to the jury in its entirety, both video and
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audio, not only during Lindeman’s direct testimony, but also during both the
prosecutor’s opening statement and his closing argument.
A videotape of a crime scene, including the position of the victim’s body and the
location and nature of the victim’s injuries, is just as admissible as a photograph,
assuming a proper foundation is laid. Bedell v. Commonwealth, Ky., 870 S.W.2d 779
(1993); Milburn v. Commonwealth, Ky., 788 S.W.2d
253 (1989). If relevant and
probative of an issue in the case, a videotape of a crime scene, like a crime scene
photograph, is admissible even though gruesome. Mills v. Commonwealth, Ky., 996
S.W.2d 473, 489 (1999); see also Dillard v. Commonwealth, Ky., 995 S.W.2d 366, 370
(1999) and cases cited therein. While we have some reservations with respect to the
propriety of focusing the camera on the victim’s wounds for as long as forty seconds,
we conclude that jurors would be no more inflamed by this lengthy depiction than by
being exposed to a crime scene photograph for the same duration of time. Thus, we
conclude that there was no error in admitting the video portion of the taped
reenactment. The admission of the audio portion, however, significantly implicates the
hearsay rule.
The audio narration on the videotape was undoubtedly an out-of-court statement
offered to prove the truth of the matter asserted, i.e., hearsay. KRE 801(c). The
narration did not fall within any exception to the hearsay rule. It was not a present
sense impression, KRE 803(l), because it did not describe events as they were
happening, but events which had already occurred. It was not within the recorded
recollection exception, KRE 803(5), because Lindeman did not claim to have
insufficient recollection of the facts as to be unable to testify without reference to the
videotape. In fact, he had already testified to the exact same facts which were
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repeated in the recorded narration. Appellant’s brief characterizes the audio portion of
the videotape as a “verbal police report,” which is inadmissible under the public records
exception, KRE 803(8)(A). No effort was made to qualify the videotape as a business
record. KRE 803(6); Prater v. Cabinet for Human Resources, Ky., 954 S.W.2d
954,
957-59 (1997). The maker of the record, i.e., the cameraman, was never identified, and
there was no proof that it was the regular practice of the Grayson Police Department to
videotape reenactments of criminal investigations. Rabovskv v. Commonwealth, Ky.,
973 S.W.2d 6, 10 (1998).
The audio narration-on the videotape was, in fact, a prior consistent statement
offered to bolster Lindeman’s in-court testimony. KRE 801A(a)(2). A prior consistent
statement generally is admissible only to rebut an express or implied charge of recent
fabrication or improper influence or motive, id., neither of which is present in this case.
In fact, the videotape was not offered as rebuttal, but was first played during the
prosecutor’s opening statement, which occurred not only prior to the introduction of any
evidence, but prior to defense counsel’s opening statement. Professor Lawson
enumerates some other circumstances when a prior consistent statement could
possess “probative value beyond mere repetition,” i.e., to cast doubt on whether or not
an alleged prior inconsistent statement was uttered, to refute a claim of inaccurate
recollection by the witness who made the prior statement, to amplify or clarify an
alleged prior inconsistent statement, or to reflect upon the seriousness of alleged
inconsistencies between testimony and a prior inconsistent statement. R. Lawson 7The
Kentucky Evidence Law Handbook § 8.10 II, at 379-80 (3d ed. Michie 1993). None of
those circumstances exist in this case.
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In overruling the motion to suppress the audio portion of the videotape, the trial
judge relied on language from our opinion in Milburn v. Commonwealth, supra:
[Appellant] particularly objects to a portion of the tape which focused on a
large pool of blood, and the simultaneous commentary of the investigating
police officer.
This videotape evidence does not fall outside of the broad category
of photographs which we have found admissible under a liberal approach
recognized in Gall v. Commonwealth, Ky., 607 S.W.2d 97, 106 (1980),
and continued through Waaer v. Commonwealth, Ky., 751 S.W.2d 28, 31
(1988). The narrative supplied in no way measures up to a grotesque
“Poe-like description” as appellant has so characterized it. We uphold the
competent ruling of the trial court to admit probative evidence.
Id. at 257.
The trial judge interpreted the first quoted sentence to mean that the
“simultaneous commentary of the investigating police officer” was an audio recording
accompanying the videotape. The Commonwealth concedes that, in fact, the videotape
in Milburn was played with the audio portion muted and that the “simultaneous
commentary” was provided by the investigating officer from the witness stand
describing the contents of the videotape as it was being played. Milburn provides no
authority for allowing a jury to hear an unsworn out-of-court narration of videotaped
evidence.
The Commonwealth does not assert that the pre-recorded narration of the
videotape falls within an exception to the hearsay rule, but relies solely on the cases of
Lee v. State, 526 N.E.2d 963 (Ind. 1988) overruled on other arounds, Rita v. State, 674
N.E.2d 968 (Ind. 1996) and State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), cert.
denied, 511 U.S. 1046 (1994) in both of which the admission of similar evidence was
held not to be reversible error. That reliance is misplaced.
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In Lee v. State, supra, the Indiana Supreme Court noted that, “Officer
Trennerry’s narration in no way connected appellant with the case nor did he draw any
conclusions concerning appellant. His narration was purely factual as to what was
being depicted on the tape at the time.” 526 N.E.2d at 965. Here, the audio portion of
the videotape included not only a description of what was being depicted on the tape,
but also Lindeman’s repetition of Appellant’s alleged confession to the murder. In State
v. Van Tran, supra, the Tennessee Supreme Court in fact found that it was error to
permit the jury to hear the audio portion of a videotape which described a crime scene
as it was being filmed. “The better practice would have been for the trial court to have
turned off the volume and had Officer Garner narrate the tape from the witness stand.”
864 S.W.2d at 477. However, the error was deemed harmless, because the narrative
pertained mainly to minor matters or facts established elsewhere in the record, and
because of the clear evidence of the defendant’s guilt. Here, the narrative included a
repetition of Appellant’s alleged confession, and the evidence of Appellant’s guilt of
murder was not overwhelming, given the results of the blood tests and Phyllis Berry’s
alleged admission that she was the person who killed Mrs. Horton.
In Scott v. State, 559 So.2d 269 (Fla. Dist. Ct. App. 1990) the execution of a
search warrant by police was videotaped by a national television film crew. The
videotape, including the audio portion, was played to the jury during the defendant’s
subsequent criminal trial for trafficking in a controlled substance. The audio portion
included statements by police officers that a number of complaints had been filed
against the residents of the searched premises, that cocaine trafficking had occurred on
the premises, and that the property was not zoned for a “supermarket for cocaine.”
Admission of the audio portion was held reversible error because the unsworn
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statements of the officers were inadmissible hearsay. In Scott, the inadmissible
hearsay occurred in a recording of events as they were occurring. Here, the
inadmissible hearsay occurred in a recording of a reenactment of events which had
already occurred. Either way, the legal principle is the same.
Compounding the error in this case is the fact that the videotape was played to
the jury in its entirety not only during the Commonwealth’s case-in-chief, but also during
both the prosecutor’s opening statement and his closing argument. RCr 9.42(a) states
that, “[t]he attorney for the Commonwealth shall state to the jury the nature of the
charge and the evidence upon which the Commonwealth relies to support it.” Thus:
The only legitimate purpose of an opening statement is so to explain to
the jury the issue they are to try that they may understand the bearing of
the evidence to be introduced.
Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355, 357 (1933); see also Brummitt
v. Commonwealth, Ky., 357 S.W.2d
37 (1962); Turner v. Commonwealth, Ky., 240
S.W.2d 80 (1951); Mills v. Commonwealth, 310 Ky. 240, 220 S.W.2d 376 (1949).
While we have allowed prosecutors to display admissible items of real evidence
to the jury during opening statement, Sherlev v. Commonwealth, Ky., 889 S.W.2d 794
(1994) (photograph of the victim), Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d
653 (1939) (bloody coat worn by the defendant), we have never sanctioned the playing
of a witness’s prerecorded testimonv during opening statement, much less a witness’s
prerecorded unsworn statement. As for closing argument, attorneys are generally
allowed to replay excerpts from recorded testimony, which is analogous to reading
excerpts from the record. Hodaes v. State, 392 S.E.2d 262 (Ga. Ct. App. 1990);
People v. Gross, 637 N.E.2d 789 (Ill. App. Ct. 1994). Here, however, the replay of the
videotape was but a repetition of Lindeman’s entire testimony, tantamount to recalling
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Lindeman to the witness stand in the middle of summation. Compare Eaan v. Dotson,
155 N.W. 783 (S.D. 1915), overruled on other grounds, Hackworth v. Larson, 165
N.W.2d 705 (S.D. 1969) in which a pro se litigant attempted to give unsworn testimony
regarding a disputed fact during his opening statement.
The right of a person to try his own case does not contemplate the
privilege of giving testimony three times in the same case, viz: As an
unsworn witness in the “opening statement;” as a witness under oath; and
again in his closing argument.
Id. at 790.
Officer Lindeman actually testified four times with respect to his investigation and
Appellant’s alleged confession in this case, viz: As an unsworn witness during opening
statement, both sworn and unsworn during the Commonwealth’s case-in-chief, then
again as an unsworn witness during closing argument. We do not decide here whether
the repetition of admissible evidence could so prejudice a defendant as to entitle him to
a new trial. We do decide here that the repetition of inadmissible evidence regarding a
disputed fact was so prejudicial in this case as to preclude any finding of harmless
error.
III. INTOXICATION DEFENSE.
There was evidence that during the hours preceding Bess Horton’s murder,
Appellant consumed a substantial quantity of beer, whiskey, “horse tranquilizers,” and
possibly marijuana. His drunken, out-of-control behavior after arriving at his mother’s
residence on the night of the murder was well documented. Minnie Burton testified that
the two began quarreling because Appellant was attempting to cook “crazy stuff, like
pickles, stuff you really don’t cook,” in a frying pan; and that Appellant told her that, “I
don’t have any control over anything I do.” Phyllis Berry described Appellant as “highly
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intoxicated.” Appellant’s brother testified that Appellant was “wired up and ready to
fight.” Officer Wolfe described Appellant as being intoxicated when he transported him
from the crime scene to King’s Daughters’ Medical Center. From this evidence, the trial
judge could and did conclude that Appellant was entitled to an instruction on the
defense of intoxication. Slaven v. Commonwealth, Ky., 962 S.W.2d
845, 856 (1997);
Brown v. Commonwealth, Ky., 575 S.W.2d 451, 452 (1978); Jewel1 v. Commonwealth,
Ky., 549 S.W.2d 807, 814 (1977), overruled on other arounds, Pavne v.
Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 456 U.S. 909 (1982).
However, he refused Appellant’s request to instruct the jury on second-degree
manslaughter as a lesser included offense of murder.
As pointed out in Slaven v. Commonwealth, supra, at 857, the defense of
voluntary intoxication does not authorize an acquittal if the jury finds the defendant was
so intoxicated that he could not form the requisite intent to commit murder. Rather, its
effect is to reduce the offense from the intentional crime of murder (or first-degree
manslaughter) to the wanton crime of second-degree manslaughter. The definition of
“wantonly” provides that a person who acts wantonly “solely by reason of voluntary
intoxication also acts wantonly with respect thereto.” KRS 501.020(3). This means that
if a defendant was so voluntarily intoxicated that he killed another without the intent to
do so, the fact of his voluntary intoxication, itself, constituted the element of wantonness
necessary to convict of second-degree manslaughter. Thus, if a jury is instructed on
voluntary intoxication as a defense to intentional murder or first-degree manslaughter, it
must also be instructed on second-degree manslaughter as a lesser included offense;
and the failure to do so is prejudicial error. Sprinaer v. Commonwealth, Ky., 998
S.W.2d 439, 454-55 (1999); Slaven v. Commonwealth, H
supra, at 856-57. n
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determined that Appellant was entitled to an instruction on the defense of voluntary
intoxication, the trial judge’s refusal to instruct on second-degree manslaughter was
reversible error requiring a new trial.
IV. DOBSON’S OPINION TESTIMONY.
Appellant asserts it was error to permit the EMT, Dobson, to express an opinion
that there was too much blood on Appellants arms and clothing to have resulted solely
from Appellant’s relatively minor injuries. The trial judge found that Dobson had
sufficient training and experience to express such an opinion, KRE 104(a), KRE 702,
and we conclude that his finding in that regard was not an abuse of discretion. Fugate
v. Commonwealth, Ky., 993 S.W.2d 931 (1999); Ford v. Commonwealth, Ky., 665
S.W.2d 304 (1983) cert. denied, 469 U.S. 984 (1984).
V. APPELLANT’S STATEMENT TO DOBSON.
Appellant asserts it was error to permit Dobson to repeat the incriminating
response which Appellant made to Dobson’s inquiry about the origin of the blood on his
body and clothing, because Appellant had not been readvised of his Miranda rights
before the inquiry was made. We note at the outset that Miranda was concerned with
“the protection which must be given to the privilege against self-incrimination when the
individual is first subjected to police interrogation.” Miranda v. Arizona, 384 U.S. 436,
477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). Miranda does not require that the
warnings be repeated each time the interrogation process is resumed after an
interruption. United States v. Delav, 500 F.2d 1360, 1365 (8th Cir. 1974); Evans v.
Swenson, 455 F.2d 291, 296-97 (8th Cir. 1972), cert. denied, 408 U.S. 929 (1972);
Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031
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(1969). “In each case, the ultimate question is: Did the defendant, with a full
knowledge of his legal rights, knowingly and intentionally relinquish them?” Miller v.
United States, supra, at 496. At the time of his arrest, Appellant told Officer Lindeman
that he was aware of his Miranda rights and, in fact, recited them verbatim to Lindeman.
He does not claim and there is no reason to assume that he suddenly forgot them while
being transported from the crime scene to the hospital.
Furthermore, Dobson was not a police officer, but an employee of the hospital.
There was no evidence to support a conclusion that he was a state actor as is required
to support a claim of a violation of a constitutional right.
Absent police conduct causally related to the confession, there is simply
no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.
Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986);
see also Burdeau v. McDowell, 256 U.S. 465,41 S.Ct. 574, 65 L.Ed. 1048 (1921);
Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 76-77 (1995); cf. Coolidae v. New
Hampshire, 403 U.S. 443,487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971);
Brock v. Commonwealth, Ky., 947 S.W.2d 24, 29 (1997).
Appellant relies on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d
359 (1981) in which incriminating statements made by a defendant to a psychiatrist
during a competency examination were held inadmissible against him, because the
statements were elicited absent preliminary Miranda warnings. The psychiatrist was
deemed a state actor, because he had been appointed by the court to conduct the
examination. Here, there was no evidence that EMT Dobson was requested or
appointed by any state agency to interrogate Appellant about the origin of the blood on
his body and clothing. The mere fact that the police transported Appellant to King’s
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Daughters’ Hospital for treatment of his wounds did not, ipso facto, transform Dobson
from a hospital employee into a state actor.
VI. EXCLUSION OF EXCULPATORY EVIDENCE.
An arguably exculpatory investigative report was discovered in the records of the
Grayson Police Department and furnished to defense counsel prior to trial. The report
was unsigned and consisted primarily of hearsay information obtained by its
unidentified author from witnesses who implicated Minnie Burton, Phyllis Berry and
Berry’s boyfriend, Scott Trent, in the murder of Mrs. Horton. The report concluded:
I, myself, believe after talking with these people and listening to their
stories, that the burglary and murder took place earlier that evening and
that the other people had ran off and left Sammy because he had gotten
to (sic) wild for them and that Sammy had returned to Minnie Burton’s
apartment and broke in there looking for her. Not finding her there, he
returned to the crime scene of Mrs. Horton’s home.
Officer Lindeman speculated that the report had been authored by Appellant’s
father, Ronald Fields, a former employee of the Grayson Police Department who was
employed by the Olive Hill Police Department on the date of Mrs. Horton’s murder.
Ronald Fields admitted that he had conducted his own investigation and prepared a
report which he furnished to the Grayson Police Department, though he was never
called upon to identify this particular report. The report consisted almost exclusively of
the kind of “investigative hearsay” which we have consistently condemned. Slaven v.
Commonwealth, supra, at 859; Bussey v. Commonwealth, Ky., 797 S.W.2d 483, 486
(1990); Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 541 (1988), cert. denied, 516
U.S. 854 (1995). This kind of evidence is no more admissible when offered by the
defendant than when offered by the Commonwealth. Nor does the report fall within the
business records exception to the hearsay rule, since there was no proof that the
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person who prepared the report was under a business duty to do so. KRE 803(6);
Rabovskv v. Commonwealth, supra, at IO; Prater v. Cabinet for Human Resources,
supra, at 959; Lawson, supra, § 8.65 V, at 465-66. If it was, indeed, prepared by
Ronald Fields, he did so at a time when he was not an employee of the Grayson Police
Department. Finally, the author’s opinion would not have been admissible under this
exception. KRE 803(6)(B).
VII. MISCELLANEOUS ISSUES.
Appellant cites several instances in which he believes the Commonwealth
introduced evidence of “other bad acts” in violation of KRE 404(b). We have examined
each of these claims and disagree with Appellants characterization of this evidence.
Specifically, the fact that Officer Lindeman knew Appellant did not imply prior bad
conduct, since Appellant’s father was a police officer and had formerly worked for the
Grayson Police Department. The fact that Minnie Burton was afraid of Appellant
logically followed the facts that Appellant had thrown knives at her while at his mother’s
residence and had told her that he had just killed his brother. The fact that Phyllis Berry
testified that her brother was now in prison cast no reflection on Appellant’s character
just because Berry’s brother was an acquaintance of Appellant.
The crime scene photographs were admissible for the same reasons as the
video portion of the crime scene videotape. The prosecutor’s inquiry of Officer
Lindeman as to whether Appellant denied killing Mrs. Horton was not a comment on
Appellant’s silence. According to Lindeman, Appellant did not exercise his right to
remain silent, but admitted killing Mrs. Horton. The trial judge did not abuse his
discretion or deny Appellant a public trial by removing spectators from the courtroom
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prior to hearing legal arguments concerning jury instructions, particularly in the absence
ofany objection. See aenerallv Lexinaton Herald-Leader Co.. Inc. v. Meias, Ky., 660
S.W.2d
658 (1983). Except for the failure to include an instruction on second-degree
manslaughter, the trial judge’s instructions accurately framed the law of the case. It
was not error to admit evidence of Appellant’s five prior convictions during the penalty
phase of the trial. KRS 532.025(1)(b). Use of the burglary as an aggravating factor
authorizing imposition of the death penalty did not constitute double jeopardy. Bowlinq
v. Commonwealth, Ky., 942 S.W.2d 293, 308 (1997), cert. denied, - U.S. -) 118
S.Ct. 451, 139 L.Ed.2d 387 (1997).
Since this case is being remanded for a new trial, there is no need to discuss the
claimed errors relating to jury selection, Appellant’s temporary absence from the
courtroom during voir dire, or other matters which are unlikely to recur upon retrial.
Accordingly, the judgment of conviction and sentence imposed in this case are
reversed and this case is remanded to the Rowan Circuit Court for a new trial in
accordance with the contents of this opinion.
Lambert, C.J.; Johnstone, and Stumbo, JJ., concur.
Keller, J., dissents by separate opinion, with Graves and Wintersheimer, JJ.,
joining that dissent.
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COUNSEL FOR APPELLANT:
Oleh R. Tustaniwsky
Thomas M. Ransdell
Assistant Public Advocates
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
David A. Smith
Kent T. Young
Dana M. Todd
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: FEBRUARY 24,200O
TO BE PUBLISHED
1997-SC-0424-MR
SAMUEL STEVEN FIELDS
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
97-C R-6
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I dissent from the majority opinion because I disagree with the conclusions it
reaches regarding both the videotaped evidence, Part II, and the intoxication defense,
Part III. In my opinion, neither assignment of error justifies our reversal of Fields’
conviction.
NARRATED VIDEOTAPE EVIDENCE
While I agree with the majority’s conclusion that the narrated portion of the
videotape was inadmissible hearsay, I cannot agree that the improper admission of this
evidence was sufficiently prejudicial under RCr 9.24 to warrant reversal of the
conviction. Much of the material contained in the video demonstration concerns the
locations and movements of the investigating officers while on the scene, and these
were not only uncontested issues, but also minor matters of the type found harmless in
State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993). Fields contests factually only the
segment of the video demonstration where Officer Lindeman describes the encounter
between himself and Fields and where he recites Fields’ alleged confession. Fields
testified that Officer Lindeman jumped on him, knocked him on the floor, put a gun to
his head, threatened to shoot him, and accused him of killing Bess Horton. This was
contradicted by Officer Lindeman’s testimony at trial. The majority opinion indicates
that Fields denied telling Officer Lindeman that he had stabbed Bess Horton, but Fields
admitted during his testimony that he may have made the statements in an effort to
appease Officer Lindeman.
While I believe the majority is correct to describe the audio narration on the
videotape as an inadmissable prior consistent statement offered to bolster Lindeman’s
in-court testimony, I do not feel that its introduction into evidence and the
Commonwealth’s presentations of the video to the jury “affected the substantial rights”
of Fields. RCr 9.24.
Fields testified during the guilt/innocence phase of his trial, and, in addition to
exposing himself to impeachment on the basis of his prior felony record, gave the jury
an opportunity to hear his theory that his girlfriend had killed Bess Horton. Officer
Lindeman testified at trial consistently with his narration on the videotape and Fields
had an opportunity to cross-examine him on all of that testimony.
The jury heard from
an emergency room EMT, Jason Dobson, that Fields incriminated himself by explaining
the large amount of blood on his arms and clothing with the statement, “You stupid
s.o.b., if you had just killed some lady, you would be covered with blood, too.” After
deliberating on all of the evidence presented, the jury believed beyond a reasonable
doubt that Fields murdered Bess Horton.
RCr 9.24 directs this Court to reverse a criminal conviction on the basis of
evidentiary matters only when it appears to us that “the denial of such relief would be
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inconsistent with substantial justice.” I cannot conclude that the jury was so divided
over the issue of the relative credibility of Fields and Officer Lindeman that they were
swayed by the number of times Officer Lindeman’s version was presented to them.
Both Fields and Officer Lindeman testified in court during the trial. This afforded the
jury the opportunity to assess and weigh their relative credibility. I believe the trial
court’s admission of the narrated videotape was erroneous, but insufficiently prejudicial
to justify reversal because I do not believe that if the audio portion of the videotape had
been played fewer times, or not at all, that the jury would have reached any other
conclusion.
INTOXICATION DEFENSE & SECOND-DEGREE MANSLAUGHTER
In Part III of the majority opinion, the Court holds that the trial court committed
reversible error by failing to instruct the jury on the lesser included offense of seconddegree manslaughter. I disagree with this conclusion because the majority’s holding
represents a radical departure from precedent which holds that the trial court may only
instruct on lesser included offenses when the evidence presented “justifiies] a doubt
based on the theory that the crime committed was of a lower degree or lesser
culpability.” Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977). As all of the
evidence concerning Bess Horton’s murder demonstrates an intentional murder devoid
of any wanton component whatsoever, the majority holding creates a special rule that
trial judges who instruct juries on the defense of voluntary intoxication must always also
instruct on second-degree manslaughter as a “package deal.” Because I can see no
principled basis or statutory support for such a rule, I must dissent.
Lesser included offenses are not an entitlement, and this Court has consistently
held that trial courts should instruct on lesser included offenses “only if, considering the
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totality of the evidence, the jury might have a reasonable doubt as to the defendant’s
guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty
of the lesser offense.” Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 36-7 (1998)
(citing Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995)); See also. Brown v.
Commonwealth, supra; Tipton v. Commonwealth, Ky., 640 S.W.2d
818, 820 (1982)
(“[Tjo support a lesser included instruction the posture of the evidence must be such as
to create a reasonable doubt as to whether the defendant is guilty of the higher or lower
degree.” Id.); Moore v. Commonwealth, Ky., 771 S.W.2d 34, 37 (1989) (citing Hayes v.
Commonwealth, Ky., 625 S.W.2d 583 (1982)) (“It is not proper to instruct the jury on a
wanton offense when all the evidence indicates that it would be unreasonable for the
jury to believe that the defendant’s conduct was anything other than intentional.” Id.);
Gall v. Commonwealth, Ky., 607 S.W.2d
97, 108-109 (1980).
The United States Supreme Court, in Hopper v. Evans, 456 U.S. 605, 72
L.Ed.2d 367, 102 S.Ct. 2049 (1982) clarified that the decision as to whether to instruct a
jury on lesser included offenses has a constitutional dimension: “due process requires
that a lesser included offense instruction be given when the evidence warrants such an
instruction. But due process requires that a lesser included offense instruction be given
only when the evidence warrants such an instruction.” ld at 611; See Cox v.
Commonwealth, Ky., 491 S.W.2d 834 (1973).
KRS 501.020 defines the mental states applicable in the Kentucky Penal Code:
(1) “Intentionally”--- A person acts intentionally with respect to
a result or to conduct described by a statute defining an
offense when his conscious objective is to cause that result
or to engage in that conduct.
(3).“Wantonly”---A person acts wantonly with respect to a
result or to a circumstance described by a statute defining
-4-
an offense when he is aware of and consciously disregards
a substantial and unjustifiable 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
person would observe in the situation. A person who
creates such a risk but is unaware thereof solely by reason
of involuntary intoxication also acts wantonly with respect
thereto.
(4) “Recklessly”--- A person acts recklessly with respect to a
result or to a circumstance described by a statute defining
an offense when he fails to perceive a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and
degree that failure to perceive it constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation.
KRS 501.020.
It is important to realize that, unlike at common law’, the culpable mental states
defined at KRS 501.020 are fully and clearly defined so as to be mutually exclusive.
In
Wells v. Commonwealth, Ky., 561 S.W.2d 85, 88 (1978) we described intent and
wantonness manifesting extreme indifference to the value of human life as “two distinct
culpable mental states.” u.
“‘Culpable mental state’ means ‘intentionally’ m
‘knowingly’ or ‘wantonly’ a ‘recklessly,’ as those terms are defined in KRS 501.020.”
KRS 501.010(1) (emphasis added). Although the draft Model Penal Code included a
provision which defined less culpable mental states as fully encompassed within its’
definition of “purposely” (what the Kentucky Penal Code refers to as intentional conduct
in an identical definition)2,
the General Assembly did not adopt this subsection, and
“‘At common law a charge of murder embraced all the lower degrees of culpable
homicide” and “the jury may find a defendant guilty of a lesser-included offense, even
though there is no evidence to support the lesser than the greater crime . . . .” Smith v.
Commonwealth, Ky., 737 S.W.2d 683, 688-89 (1987).
‘Model Penal Code Section 2.02(5):
(continued...)
defined the culpable mental states so that a given act is undertaken either intentionally
or knowingly or wantonly or recklessly.3
The trial court should only instruct the jury on
both intentional murder and second-degree manslaughter, offenses with conflicting
mental states, when the evidence presents a question as to whether a given act was
accomplished intentionally or wantonly. However, when all of the evidence proves
beyond a reasonable doubt that someone acted intentionally, as is the case here, the
requirements of another competing mental state, as a matter of law, cannot be
established.
In Hudson v. Commonwealth, Ky., 979 S.W.2d 106, 110 (1998) we stated that
evidence of the mental state connected with a criminal act may be inferred from
examining the results of that act:
Intent to kill can be inferred from the extent and character of
a victim’s injuries. Further, because a person is presumed
to intend the logical and probable consequences of his
conduct, “a person’s state of mind may be inferred from
actions preceding and following the charged offense.
Id. (citations deleted); See also McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 524
(1994). Some crimes cannot rationally be viewed as the product of wanton acts
‘(...continued)
Substitutes for Negligence, Recklessness and Knowledge.
When the law provides that negligence suffices to establish
an element of an offense, such element also is established if
a person acts purposely, knowingly or recklessly. When
recklessness suffices to establish an element, such element
also is established if a person acts purposely or knowingly.
When acting knowingly suffices to establish an element,
such element also is established if a person acts purposely.
‘See Robert G. Lawson and William H. Fortune, Kentuckv Criminal Law, Section
2-2(c)(2) (LEXIS 1998) for a discussion of inferences which can be drawn from the
General Assembly’s failure to include Model Penal Code Section 2.02(7) in the final
legislation.
-6-
because the tangible results of those crimes demonstrate the absurdity of defining
certain actions within the scope of risky behavior contemplated by the Kentucky Penal
Code’s definition of wantonly. a, Moore v. Commonwealth, Ky., 771 S.W.2d
34, 37
(1989) (victim was pushed down an embankment, shot at and missed, and then shot in
the head four times including a contact wound to the top of the head); Foster v.
Commonwealth, Ky., 827 S.W.2d 670, 677 (1991) (five victims were brutally killed over
a period of four hours, each shot at close range, stabbed repeatedly, crushed by a car,
and in some instances burned, then left for dead at three separate locations throughout
the city); Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921 (1987) (‘In view of the
number, location, and lethal magnitude of the gunshots, it would have been
unreasonable to give a wanton murder instruction.” Id. at 925);
Bess Horton’s murder was the product of a criminal act which cannot rationally
be described as the product of a wanton or reckless mental state. Bess Horton’s
murderer began by sawing open his victim’s throat with multiple passes of a knife, and
finished, in the words of the majority opinion, by stabbing her “in the head with such
force that the knife buried to the hilt in her right temple and the point of the blade
protruded from her left temple.” A jury could not reasonably conclude that Bess
Horton’s murderer’s decision to hack the victim’s throat apart and plunge his blade
through her skull “created a risk” that Bess Horton would die and that the murderer
either ignored the risk or was too drunk to appreciate the possibility that stabbing
someone through the head can kill them. The murderer could only have sawed the
victim’s throat open and buried his knife between her temples if “his conscious objective
[was] to cause [her death].” KRS 501.020(l).
-7-
The evidence in this case did not justify
a second-degree manslaughter instruction because there is no evidence from which a
reasonable juror could believe that Fields unintentionally killed Bess Horton.
The majority holds, however, that the evidence of voluntary intoxication
presented by Fields entitles him to a second-degree manslaughter instruction as a
matter of law. While incorrect, the majority’s conclusion is understandable given the
haphazard and inconsistent voluntary intoxication jurisprudence in this state,4
particularly before the adoption of the Kentucky Penal Code5. Prior to today’s majority
“Since the time of the American Civil War, Kentucky courts have recognized that
evidence of voluntary intoxication was somehow significant to homicide prosecutions.
The exact role of evidence of voluntary intoxication, however, has been far from
consistent. At times courts have held that evidence of voluntary intoxication requires
the trial court to instruct the jury as to the lesser included offense of voluntary
manslaughter because evidence of voluntary intoxication may influence a jury’s
determination of the presence of malice aforethought. See. e.g., Smith v.
Commonwealth, 1 Duvall 224, 227 (1864); Golliher v. Commonwealth, Ky., 2 Duvall
163, 165 (1865); Blimm v. Commonwealth, 7 Bush 320, 325 (1870); Shannahan v.
Commonwealth, 8 Bush 463, 470-71 (1871); Roaers v. Commonwealth, Ky., 27 S.W.
813, 814 (1894); Bishoo v. Commonwealth, 109 Ky. 558,60 S.W. 190 (1901); Pash v.
Commonwealth, 146 Ky. 390, 142 S.W. 700 (1912); Graham v. Commonwealth, 200
Ky. 161,252 S.W. 1012 (1923); Shorter v. Commonwealth, 252 Ky: 472,67 S.W.2d
695 (1934); Horn v. Commonwealth, 292 Ky. 587, 167 S.W.2d 58 (1943) Other times,
the courts have held that evidence of voluntary intoxication cannot reduce a crime from
murder to manslaughter, but should be considered by the jury in determining whether to
sentence the defendant to death or life imprisonment. Harris v. Commonwealth, 183
Ky. 542,209 S.W. 509 (1919); Thomas v. Commonwealth, 196 Ky. 539,245 S.W. 164
(1922); Perciful v. Commonwealth, 212 Ky. 673, 279 S.W. 1062 (1926); Lawson v.
Commonwealth, 222 Ky. 614, 1 S.W.2d 1060 (1928).
?t is possible that some of the lingering confusion concerning the state of the law
of voluntary intoxication in the Commonwealth stems from the hybrid of ill-defined
statutory and common law of homicide within which the “defense” developed:
In 1974, before adoption of the Penal Code, Kentucky had
nearly a dozen homicide crimes. Most were narrow in scope
(e.g. lynching and mob violence, killing through the negligent
operation of a motor vehicle, homicide through an act of
abortion, etc.) and duplicative of the coverage provided by
the more broadly defined homicides of murder, voluntary
manslaughter, and involuntary manslaughter. Involuntary
(continued...)
-8-
opinion, however, the law in this state has always been that, even in intentional
homicide cases presenting questions of voluntary intoxication, lesser included offenses
requiring unintentional mental states should be given only where justified by the
evidence. This was the case both early in our Commonwealth’s jurisprudence and just
before the adoption of the Kentucky Penal Code. See, e.a. Marshall v. Commonwealth,
141 Ky. 222, 132 S.W. 139 (1910) (Defendant’s murder conviction for decapitating his
former girlfriend with a razor affirmed despite trial court’s refusal to instruct on lesser
included offenses); Harris v. Commonwealth, 183 Ky. 542, 209 S.W. 509, 511 (1919)
(No reversible error where the trial court refused to instruct on manslaughter in light of
‘( . ..continued)
manslaughter was defined by statute; statutes on murder
and voluntary manslaughter prescribed penalties for
conviction, but left definition of the offenses to common law
sources and principles.
Murder was defined as a killing with malice aforethought.
The words “malice” and “aforethought” were unhelpful if not
confusing; the exact nature of the offense was unclear. The
following homicides constituted murder before the adoption
of the Code: intentional killings, “depraved heart” killings,
and felony murder. Voluntary manslaughter was defined as
a killing in sudden affray or sudden heat of passion upon
provocation calculated to excite passion beyond control.
Limited to intentional killings, voluntary manslaughter
operated essentially to mitigate penalties that would
ordinarily have been imposed for conviction of intentional
murder. The statute on involuntary manslaughter created
two degrees of the offense, one with felony penalties (below
those for voluntary manslaughter) and one with
misdemeanor penalties. The felony was defined as a killing
with “wanton indifference to life” while the misdemeanor was
defined as a killing through “reckless conduct.”
Robert G. Lawson and William H. Fortune, Kentucky Criminal Law, Section 8-l(a)
(LEXIS 1999) (footnotes deleted).
-9-
evidence showing the defendant purchased bullets for his pistol one afternoon, shot his
wife, then bought more
bullets and “fired several more shots into her lifeless body.” Id.);
Weick v. Commonwealth, 201 Ky. 632, 258 S.W. 90, 93 (1924) (No error in refusing to
instruct on manslaughter where defendant laid in wait for his victim to ride by on the
victim’s bicycle and shot him once with a rifle and twice with a pistol); Richards v.
Commonwealth, Ky., 517 S.W.2d
237, 240 (1975) (Conviction affirmed despite failure
to instruct on voluntary manslaughter because “[i]n the case now before us there was
no evidence of sudden heat of passion, sudden affray, or provocation. Therefore,
Richards was not entitled to an instruction on voluntary manslaughter regardless of his
drunkenness at the time he shot Carter.” Id.); Elmore v. Commonwealth, Ky., 520
S.W.2d 328, 331 (1975) (Conviction under voluntary manslaughter instruction given as
lesser included offense in murder indictment reversed because “the giving of a
voluntary manslaughter instruction is proper only in those instances where there is
evidence that will support the giving of the instruction.” Id.). After the adoption of the
Kentucky Penal Code, the law regarding when to instruct on lesser included offenses
remained the same. See Jewel1 v. Commonwealth, Ky., 549 S.W.2d 807, 814 (1977);
Salisburv v. Commonwealth, Ky.App.,
556 S.W.2d
922, 925 (1977) (Conviction under
voluntary manslaughter instruction given as lesser included offense to murder affirmed
because “in addition to the evidence of intoxication, there is evidence that the shooting
occurred in sudden affray or sudden heat of passion.” Id.); Slauahter v. Commonwealth,
Ky., 744 S.W.2d 407, 413 (1988) (Murder conviction affirmed despite trial court’s
refusal to instruct upon wanton murder and second degree manslaughter because
defendant’s defense that another person committed the murder presented no evidence
justifying an instruction which required a wanton mental state); McGuire v.
-lO-
Commonwealth, Ky., 885 S.W.2d 931, 935 (1994) (“[Prior dicta implying that lesser
included offenses should never be given when the trial court instructed on voluntary
intoxication as a defense to an intent crime] is not correct where the evidence presents
lesser included or other offenses involving wantonness or recklessness as a culpable
mental state, because voluntary intoxication is not then a defense.” U at 935 (emphasis
added)).
Today’s majority opinion gives birth to a new principle of law that every
intentional homicide case in which sufficient evidence is presented to justify a voluntary
intoxication instruction pursuant to KRS 501.080 also involves questions of
wantonness, and the jury must be instructed on second-degree manslaughter. I simply
do not agree with this conclusion for a number of reasons.
First, the majority’s holding relies on inadequate precedential support when it
cites to this Court’s opinion in Slaven v. Commonwealth, Ky., 962 S.W.2d 845 (1997) to
support its conclusion that a trial court commits reversible error by failing to instruct on
second-degree manslaughter as a lesser included offense to an intentional homicide
prosecution when the evidence supports a voluntary intoxication instruction.
Notwithstanding the fact that the language of Slaven does not reach as far as today’s
majority opinio#, Slaven’s precedential value is no greater than the authorities upon
6Today’s majority describes the interaction between the voluntary intoxication
defense and lesser included offense instructions in stating:
. . . the defense of voluntary intoxication does not authorize
an acquittal if the jury finds the defendant was so intoxicated
that he could not form the requisite intent to commit murder.
Rather, its effect is to reduce the offense from the intentional
crime of murder (or first-degree manslaughter) to the wanton
crime of second-degree manslaughter.
(continued...)
-ll-
which it relies. 4 close examination of those authorities reveals that Slaven either
overlooked the precedent contrary to its holding or intended to change the law in this
area by silently overruling precedent suggesting that the decision of whether to instruct
on lesser included offenses in intoxication cases requires examination of the evidence
presented. It appears to me that the first possibility is the more probable, and I view
Slaven as an aberration rather than a watershed change.
The only case cited in Slaven is Meadows v. Commonwealth, Ky., 550 S.W.2d
511, 513 (1977), which was decided twenty years before. Three years before Slaven,
this Court decided McGuire, supra and reaffirmed the principle that the trial court should
give no instructions on lesser included offenses unless they are justified by the
evidence. Despite the fact that the majority today cites Slaven for a conclusion
squarely contradicted by our holding in McGuire, the Court has made no attempt to
distinguish or address McGuire.
The authority Slaven did address, Meadows, supra, is not properly cited as
authority for the proposition that lesser included offenses should be given in these
cases even if not warranted by the evidence. In Meadows, the defendant claimed he
accidentally discharged his shotgun and killed the victim, and also alleged that he had
consumed alcohol and medicine prior to the shooting. The trial court instructed the jury
on intentional homicide and, apparently, on the lesser degrees of wanton and reckless
6(. . .continued)
In Slaven v. Commonwealth, Ky., 962 S.W.2d 845 (1997) the Court’s language was
less rigid and the holding was that the jury’s belief in the intoxication defense “could
reduce the offense from intentional homicide to wanton homicide . . .” Id. at 857
(emphasis added). While the Slaven version can be interpreted consistently with
McGuire v Commonwealth, Ky., 885 S.W.2d 931 (1994), today’s majority opinion
cannot.
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homicide, but did not feel that the evidence warranted a voluntary intoxication
instruction, and this Court agreed. However, because the evidence relating to
accidental shooting justified instructions on wanton and reckless homicide, the majority
remarked in dicta: “The only tangible effect the evidence of intoxication would have had
was to reduce the offense from intentional homicide to wanton or reckless homicide.”
Meadows. suora at 513. In other words, the trial court in Meadows felt that there was
sufficient evidence of wanton or reckless conduct, absent any consideration of the
defendant’s intoxication, to justify instructions on lesser offenses, and, in that context, a
separate voluntary intoxication instruction as a defense to intentional homicide would
have only directed the jury to consider the lesser offenses. In the process of laundering
the holding.in Meadows through Slaven, this rationale is discarded, and, for the first
time in Kentucky jurisprudence, this Court tells the trial courts of this state to give
instructions which are not warranted by the evidence
Second, the only other authority cited in Slaven, the 1974 Commentary to the
voluntary intoxication statute, KRS 501.080, explicitly contradicts the conclusion
reached by today’s court. The Commentary reads:
In its definition of “wantonness,” KRS 501.020 requires as
an element of this culpable mental state an awareness by
the actor of a substantial and unjustifiable risk that a result
will occur or that a circumstance exists. This element of
“awareness” is used to distinguish “wantonness” from
“recklessness.” In making this distinction KRS 501.020
expressly provides that “unawareness” of a risk, if caused
solely by voluntary intoxication, does not Preclude a showing
of “wantonness.” u (emphasis added).
The Commentary indicates that while voluntary intoxication alone does not constitute
wantonness, a defendant who has failed to recognize a risk by virtue of his intoxication
cannot defend against a claim of wantonness on the basis of his intoxication and that
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the evidence could still show he was acting wantonly as defined at KRS 501.020.
“Does not preclude” is not synonymous with “constitutes,” and the Commentary to KRS
501.080 is hardly support for the majority’s conclusion to the contrary.
Third, the majority mutates the definition of “wantonly” in KRS 501.020(3) and
concludes, apparently as a matter of law, that a defendant who persuades a jury that he
was sufficiently intoxicated to negate the intent element of intentional murder, has
demonstrated “the element of wantonness necessary to convict of second-degree
manslaughter.”
In other words, the majority opinion misinterprets the parallel definition
of “wantonly” in the third sentence of KRS 501.020(3) to require QJ& voluntary
intoxication. The majority discovers this incomplete definition by deleting the language
“A person who creates such a risk but is unaware thereof’ from the last sentence of
KRS 501.020(3), quoting the remainder of that sentence out of context, and concluding
that “[t]he definition of ‘wantonly’ provides that a person who acts wantonly ‘solely by
reason of voluntary intoxication also acts wantonly with respect thereto.“’
This redefinition ignores KRS 501.030’s requirement that a voluntary act which
creates certain risks accompany a culpable mental state. A correct reading of the third
sentence of KRS 501.020(3) must recognize that it is only operative in situations where
someone’s behaviors objectively and independently of intoxication would create the
types of risks contemplated in the previous sentences. The language in KRS
501.020(3) concerning voluntary intoxication merely serves to “eliminate, in this one
situation, the distinction between the mental states of ‘wantonly’ and ‘recklessly,“’ by:
[B]ring[ing] into play a special definition of “wantonly,” one
that eliminates the need for proof of awareness and
conscious disregard of risk. The intoxicated actor who fails
to perceive risk that would have been perceived by a sober
-14-
actor is treated as though he was aware of and consciously
disregarded the unperceived risk.
Lawson and Fortune, Kentuckv Criminal Law, Section 2-2(d)(3) (LEXIS 1998). See
a&~ Commentary to KRS 501.080 (quoted above). Today’s majority also overlooks
Todd v. Commonwealth, Ky., 716 S.W.2d 242 (1986), where this Court focused on the
statutory language of KRS 501.030(3) and correctly explained the interaction of the
sentences in that subsection: “A person who creates such a risk [a substantial and
unjustifiable risk that a result will occur] but is unaware thereof solely by reason of
voluntary intoxication also acts wantonly with respect thereto.” Id. at 246 (brackets in
original). We held in Todd that a proper reading of the last sentence of KRS 501.020(3)
required two conditions precedent to a finding of wantonness: (1) Conduct creating the
type of risk defined in this subsection, and (2) obliviousness of that risk by virtue of
voluntary intoxication. Today’s majority jettisons (1) and labels as wanton conduct any
voluntary intoxication which is sufficient to excuse an intent crime.
Finally, I dispute the majority’s conclusion: “[l]f a defendant was so voluntarily
intoxicated that he killed another without the intent to do so, the fact of his voluntary
intoxication, itself, constituted the element of wantonness necessary to convict of
second-degree manslaughter.” In other words, the majority holds that any defendant
who kills another person after voluntarily ingesting quantities of alcohol or other
controlled substances to the point where he is too intoxicated to form the intent
necessary to commit intentional murder has, as a matter of law, committed seconddegree manslaughter. KRS 507.040 defines second-degree manslaughter: “A person
is guilty of manslaughter in the second degree when, including, but not limited to, the
operation of a motor vehicle, he wantonly causes the death of another person.”
-15
The Court holds today that any person who drinks a large number of beers and
takes some “horse tranquilizers” creates a “substantial and unjustifiable risk [that he will
kill someone]. . . 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). While I see no reason to applaud gross substance abuse,
I cannot conclude, especially in the absence of any evidence submitted on this issue at
trial, that voluntary intoxication, standing alone, creates a risk that the abuser will kill
someone and that this risk is sufficient to justify a seconddegree manslaughter instruction. KRS 501.060(3); See. a. Lofthouse v.
C o m m o n w e a l t h , S.W.2d
(2000) . The jury did not find that Fields’ risky
substance abusive behavior buried a knife between Bess Horton’s temples. They
determined that Fields himself committed murder and they did so in the face of
instructions which properly informed them they could acquit Fields if they felt he was too
intoxicated to know what he was doing. There was nothing wanton about Fields’ crime
and the trial court properly declined to give instructions not warranted by the evidence.
I cannot agree with the majority opinion’s conclusion that an intentional crime (murder)
somehow sublimates into an unintentional crime (second-degree manslaughter) when a
defendant is too intoxicated to form the intent to commit the intentional crime. The trial
court correctly decided it was unnecessary to instruct the jury on second-degree
manslaughter.
I would affirm the conviction.
Graves, Wintersheimer, JJ., join this dissent.
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