JOHN ELVIS ROGERS V. COMMONWEALTH OF KENTUCKY
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MODIFIED : OCTOBER 3, 2002
RENDERED . SEPTEMBER 26, 2002
TO BE PUBLISHED
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JOHN ELVIS ROGERS
APPEAL FROM JEFFERSON CIRCUIT COURT
HON . WILLIAM E. MCANULTY, JUDGE
95-CR-0894
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE C OURT BY JUSTICE KELLER
REVERSING AND REMANDING
I . INTRODUCTION
A Jefferson Circuit Court jury found Appellant guilty of Murder, First-Degree
Robbery, and First-Degree Burglary, and recommended that Appellant serve concurrent
prison sentences totaling thirty (30) years . The trial court entered judgment in
accordance with the jury's verdict, and Appellant thus appeals to this Court as a matterof-right .'
After oral argument and a review of the record, we reverse the judgment of
the Jefferson Circuit Court and remand this case for a new trial because the trial court
erred when it: (1) prohibited Appellant from introducing evidence concerning the
circumstances under which Appellant made his incriminating statements ; and (2) failed
' KY . CONST. § 110(2)(b) .
to instruct the jury as to the law of voluntary intoxication and lesser-included criminal
homicide offenses justified by the evidence .
II . FACTUAL BACKGROUND
On March 17, 1995, Mark Buchter ("Buchter") was found bludgeoned to death in
his home in the Portland area of Louisville . An autopsy revealed that Buchter : (1) died
as a result of blunt force cranial injuries suffered when he was struck on the back of his
head eighteen (18) times with a blunt instrument of linear composition ; (2) was also
stabbed several times, most likely with the same instrument ; and (3) had defensive
wounds on his hands and arms .
Following an investigation by the Louisville Police Department, a Jefferson
County Grand Jury returned an indictment charging Appellant with Murder, First-Degree
Robbery, and First-Degree Burglary . Appellant entered a plea of not guilty to the
indicted offenses, and the matter was tried before a jury. At trial, the Commonwealth
introduced no physical evidence linking Appellant to the crime scene, and relied upon
Appellant's confession to Louisville Police Department officers and separate
incriminating statements allegedly made by Appellant to Rhonda Anderson
("Anderson") and her daughter, Wendy. Although Appellant did not testify at trial, he
defended against the charges by arguing, that: (1) he falsely confessed to involvement
in the crimes only because he, a mentally-retarded eighteen (18) year old, was
overwhelmed by the interrogation process and wished to please the authority figures
who were performing the interrogation ; (2) the other evidence in the case contradicted
the details of Appellant's confession, suggesting that Appellant had been coached ; (3)
'The case was actually tried twice before a jury, but the first jury was unable to
reach a unanimous verdict .
Anderson was untruthful when she testified that Appellant admitted his involvement in
the crimes; and (4) Appellant was at home, asleep in his bed with his wife, when these
crimes occurred .
At trial, Anderson testified that she overheard Appellant tell her daughter not to
worry because "They'll never find out who did it." According to Anderson, when she
asked Appellant what he was talking about, Appellant told her that: (1) he and three (3)
others - Jason Lewis ("Lewis"), Mary Beth Stocking (Lewis's girlfriend), and Rickie
Montgomery ("Montgomery") robbed Buchter, but did not mean to kill him ; (2) the
robbery got out of hand when Buchter began screaming and Appellant then began
hitting Buchter with a lug-wrench ; (3) Montgomery, Lewis, and another person
(described as a "black guy") also began hitting Buchter ; and (4) they then ran out of the
house, down an alley, and Appellant threw the wrench away. Anderson testified that
Montgomery, Mike Meredith ("Meredith"), and Brandy Harris ("Harris") were present
when Appellant made these statements to her. Anderson's daughter corroborated her
mother's statement at trial by testifying that she overheard Appellant's incriminating
statements to her mother and that Meredith, Harris, and some other people were also
present at the time .
Although the investigating officers had spoken with Appellant earlier in the
investigation and Appellant had denied any knowledge of the crimes, Detective Gary
Kearney ("Det . Kearney") decided to speak with Appellant again after Anderson
implicated Appellant in Buchter's death .
On the evening of April 4, 1995, Det. Kearney
caught up with Appellant and Appellant agreed to accompany Det. Kearney to the
police station . There, Appellant agreed to take a polygraph examination administered
by Lieutenant Eddie Payton ("Lt . Payton") . During the examination, Appellant again
denied any knowledge of Buchter's death . At the end of the examination, Lt . Payton
advised Appellant that he thought Appellant was lying, escorted Appellant back to Det.
Kearney, and advised Det . Kearney that Appellant had lied during the polygraph
examination .
Det. Kearney then spoke with Appellant and explained to him that the officers
had tape-recorded statements implicating Appellant in the crime and informed Appellant
that if he wanted to tell the truth, he would have to do it soon . Appellant began to cry
during this encounter with Det. Kearney, and soon told Det. Kearney that he wished to
speak with Lt . Payton again. While Lt. Payton prepared for another polygraph
examination of Appellant, Appellant told Lt. Payton that he was responsible for
Buchter's death. After Lt. Payton further interrogated Appellant for approximately two
(2) hours, the investigating officers took a videotaped statement from Appellant .
At trial, the Commonwealth's primary evidence against Appellant consisted of
this videotaped statement in which Appellant told the investigating officers that, on the
night Buchter was killed : (1) he and some friends - Lewis, Mary Beth Stocking, and
B .J . Stocking (Mary Beth's brother) - were drinking at Lewis's house; (2) they ran short
of money and decided, at Lewis's suggestion, to rob someone ; (3) they drove in Lewis's
automobile and parked a block down from Buchter's house; (4) Appellant was drunk
and unsure how the group gained entry into Buchter's residence, but they got in
somehow; (5) Lewis entered first, followed by Mary Beth Stocking, B .J . Stocking, and
then Appellant ; (6) Lewis was armed with a BB gun that looked like a 9mm handgun
and Appellant was armed with a pipe or tire tool or crowbar that Appellant had taken
from the back of Lewis's car; (7) Buchter began screaming when Lewis produced his
BB gun and announced the robbery; (8) Appellant then "started panicking . I started
swinging the tool up and down . . . the weapon I had . I think I hit him more than I
thought I did" ;3
(9)
Buchter fell to the floor, and Lewis rifled through his pockets ; (10)
Appellant dropped the "crowbar" beside Lewis, ran out of the house, and went home .
In his defense, Appellant introduced the testimony of (1) Montgomery, to the
effect that Anderson had a poor reputation for truthfulness, and that, contrary to
Anderson's testimony, he was not at her home when Appellant allegedly told her about
the crime ; (2) Meredith, who also testified that he was not present at Anderson's home
as Anderson alleged ; and (3) several of Buchter's co-workers, who testified that they
saw Buchter alive in downtown Louisville around lunch time on Friday, March 17, 1995
although the Commonwealth alleged that Buchter was killed, and Appellant confessed
to killing Buchter, the night before .
In addition, Appellant's wife, mother-in-law, and sister-in-law all testified that
Appellant was at home the night the crimes were committed . Appellant's wife testified
that: (1) Appellant was with her at her parents' house where they lived on the evening of
March 16, 1995; (2) she sent Appellant to bed at approximately 10:00 p.m ., and joined
him soon thereafter; (3) Appellant was in bed with her when her mother awakened her
at 2 :00 a.m . and when she woke up later that morning ; (4) Appellant could not have left
the house without her knowledge ; and (5) she did not see any blood on Appellant's
clothes when she washed them . Appellant's sister-in-law corroborated Appellant's
wife's testimony that Appellant was at home that evening and that Appellant was sent to
'Later in his statement, in response to the question of how many times Appellant
believed he had hit Buchter with the tool, Appellant explained, "I don't know how many
times I hit him . I was drinking, and I got scared . . . nervous, uh, you know. Like he
was going to hit me or something, so I just started swinging the pipe. Didn't mean to hit
him with it."
bed at approximately 10:00 p.m . Appellant's mother-in-law, Jeanette Ready, verified
that Appellant was at home as of midnight and that Appellant did not go out again in the
early morning hours .
Appellant also introduced testimony concerning his mental retardation from two
(2) mental health professionals . Dr. Peggy Pack ("Dr. Pack"), a psychologist, testified
that: (1) she examined Appellant to determine his level of intellectual functioning ; (2)
although Appellant had no readily identifiable physical characteristics of retardation,
testing demonstrated that Appellant was mildly mentally retarded, with an Intelligence
Quotient (IQ) of 65 and communication and socialization skills far below his actual age ;
(3) while Appellant pretends to understand what people are talking about, in stressful
situations, he would have difficulty comprehending others ; and (4) mildly mentally
retarded people are generally very compliant, dependent on authority figures for
direction and guidance, and very much want to please authority figures . Licensed
Clinical Psychologist Marilyn Wagner ("Wagner") testified that she, too, examined
Appellant, and that her testing reflected that Appellant was mildly mentally retarded with
an IQ of 66 and poor communication skills .
At the conclusion of the evidence, the trial court instructed the jury as to the
indicted offenses, and the jury returned a verdict finding Appellant guilty of all three (3)
counts of the indictment. The trial court entered judgment sentencing Appellant to a
thirty (30) year term of imprisonment in accordance with the jury's penalty phase
verdict, and this appeal follows . Appellant argues that the trial court erred when it : (1)
allowed the Commonwealth to introduce Appellant's videotaped confession ; (2)
excluded testimony concerning the circumstances surrounding the videotaped
confession and challenging Lt. Payton's administration of the polygraph examination ;
(3) excluded Dr. Pack's testimony to the effect that Appellant's mental retardation could
have caused him to confess falsely ; (4) failed to instruct the jury as to voluntary
intoxication and lesser-included offenses ; and (5) limited Appellant's ability to crossexamine Anderson and Lt. Payton regarding their potential biases .
We hold that
Appellant's second and fourth allegations of error require reversal for a new trial, and
that Appellant's third allegation of error requires further attention by the trial court.
III . ANALYSIS
A. APPELLANT'S CONFESSION
1 . VOLUNTARINESS
Appellant sought suppression of his videotaped confession on the grounds that:
(1) he was not advised of his Miranda 4 rights in language that he could understand and
comprehend and that he, therefore, did not knowingly and intelligently waive those
rights ; (2) his confession was involuntary and therefore inadmissible under
constitutional due process guarantees because the investigating officers interrogated
him in a coercive manner; and (3) the factual evidence in the case contradicts the
substance of Appellant's confession, and the confession is thus inadmissible because it
lacks trustworthiness . Appellant's "shotgun approach" appears to have confused both
the record in the trial court and the arguments on appeal . Although the question of
whether a defendant has knowingly, voluntarily, and intelligently waived his Miranda
rights is germane to whether an incriminating statement is "compelled" within the
meaning of the Fifth Amendment, those constitutional guarantees are implicated only
'Miranda v. Arizona, 384 U .S. 436, 86 S .Ct. 1602, 16 L.Ed .2d 694 (1966) .
'Colorado v. Spring, 479 U .S. 564, 573, 107 S.Ct . 851, 857, 93 L.Ed .2d 954
(1987), quoting Moran v. Burbine , 475 U .S. 412, 106 S .Ct. 1135, 89 L.Ed .2d 410
in the context of custodial interrogations,' and the factual record below conclusively
establishes that Appellant voluntarily accompanied Det. Kearney to the police station
for questioning . Thus, for purposes of this appeal, Appellant's understanding of his
Miranda rights is relevant only as part of the totality of the circumstances relevant to
questions of due process . Further, while the allegations in Appellant's third stated
grounds for suppression may be relevant, in part, to the fact-finder's consideration of
the extent to which a confession was the product of coercion, mere factual
discrepancies, standing alone, do not constitute grounds for suppression .
Thus, the admissibility of Appellant's videotaped confession turns on whether the
method in which it was obtained offends Fourteenth Amendment Due Process
guarantees . And, the relevant inquiry is whether the investigating officers coerced the
confession "by physical violence or other deliberate means calculated to break the
suspect's will"' because "coercive police activity is a necessary predicate to the finding
that a confession is not 'voluntary' within the meaning of the Due Process Clause of the
Fourteenth Amendment . ,8
After conducting an evidentiary hearing that lasted longer than Appellant's
interrogation did, the trial court entered a written order that first summarized the
testimony at the hearing and then focused on the question of whether Appellant's
confession was the product of police coercion :
(1986). See also Mills v. Commonwealth , Ky., 996 S .W.2d 473, 481-482 (1999) .
'See Miranda v . Arizona , su ra note 4.
'Oregon v. Elstad , 470 U .S. 290, 312, 105 S .Ct. 1285, 84 L .Ed .2d 222, 234
(1985) .
(1986) .
'Colorado v. Connelly , 479 U .S. 157, 167, 107 S.Ct. 515, 93 L .Ed .2d 473, 484
The Commonwealth presented no expert testimony
regarding Mr. Rogers' current intellectual ability. Having
considered Dr. Pack's expert testimony on Mr. Rogers'
behalf as well as the voluminous records on which she
based her report, this Court finds that Mr. Rogers is mentally
retarded .
However, the Court must not only consider the above
listed factors surrounding the mental status of the accused,
but also how those factors relate to the police tactics utilized
during the interrogation . The court must determine whether
a state actor deprived the accused of due process of law.
Colorado v. Connellv , 479 U .S . 157, 164 (1986).
Mr. Rogers does not allege that he was physically abused,
threatened, isolated, or denied necessities . Instead, he
insists that Detective Kearney and Lt. Payton misused the
polygraph examination to psychologically coerce him into
making a statement . Specifically, the officers never
informed Mr. Rogers that the test could never be used as
evidence by the Commonwealth . In essence, Mr. Rogers
states that the officers used the polygraph for no other
purpose than to elicit a confession . However, finding no
Kentucky cases on this issue, Mr. Rogers cites numerous
cases from other jurisdictions in support of his contention
that such conduct equates coercion .
This Court finds no authority to support Mr. Rogers'
argument. The officers in this case read Mr . Rogers his
Miranda rights three times. Mr. Rogers willingly signed a
waiver of rights form and agreed to take the polygraph
examination . At the conclusion of the examination, Lt.
Payton told Mr. Rogers that he failed and obviously was not
telling the truth . This type of police conduct is not coercion .
This Court does not doubt that Mr. Rogers intellectual
capability is limited . However, this fact alone does not
render his statement involuntary .
Mr. Rogers also moves this Court to re-open the
suppression hearing to determine the factual validity of Mr.
Rogers' statement . Mr. Rogers contends that the reliability
and trustworthiness of his statement is relevant to the issue
of his mental competence . Nevertheless, Mr. Rogers
concedes that reliability is irrelevant to the issue of coercion .
As previously stated, absent police coercion, Mr. Rogers
motion to suppress must fail. Therefore, further inquiry into
the reliability and trustworthiness of the statement is not
necessary at this time . Mr. Rogers is free to challenge the
factual validity and reliability of his statement at trial.
Appellant does not contend on appeal that the officers coerced his confession by
physical intimidation or threats, but instead contends that the trial court failed to
appreciate the "psychological coercion" involved in the officers' interrogation and
utilization of the polygraph examination . Appellant argues that, under the "totality of the
circumstances" 9 - specifically Appellant's low IQ, the polygraph examiner's deviation
from administrative regulations and failure to advise Appellant that the examination
results would not be admissible in any judicial proceeding, and the officers'
confrontation of Appellant with the questionable "fact" that he had "lied" during the
examination - the interrogation constituted impermissible coercion . We disagree, and
hold that the trial court properly found that the Commonwealth has proven the
voluntariness of Appellant's confession by a preponderance of the evidence."
In Henson v . Commonwealth ," this Court held that:
To determine whether a confession is the result of
coercion, one must look at the totality of the circumstances
to assess whether police obtained evidence by overbearing
the defendant's will . . . . The three criteria used to assess
voluntariness are 1) whether the police activity was
"objectively coercive ;" 2) whether the coercion overbore the
will of the defendant; and 3) whether the defendant showed
that the coercive police activity was the "crucial motivating
factor" behind the defendant's confession .
Here, the first criteria - "objectively coercive" police conduct - is lacking . This Court
has recognized that police officers use polygraph examinations in connection with
'See Allee v. Commonwealth , Ky., 454 S .W.2d 336 (1970) .
"Tabor v . Commonwealth , Ky., 613 S.W.2d 133, 135 (1981) .
"Ky., 20 S.W .3d 466 (2000).
''Id . at 469.
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suspect interrogations for the purpose of obtaining confessions," and the Kentucky
appellate courts have found confessions voluntary despite the fact that they followed
polygraph examinations ." While Appellant argues that the manner in which the officers
in this case (mis)used the polygraph examination in their interrogation of a mentally
retarded suspect constituted impermissible coercion, we find Appellant's allegations
unpersuasive .
Appellant's mental retardation is a factor to consider in assessing the
voluntariness of a confession, but "the mere existence of a mental condition, by itself
and apart from its relation to police coercion, does not make a statement
constitutionally involuntary ."" And, here, the record reflects no attempt by the
investigating officers to "take advantage" of Appellant's low intelligence . In fact, both of
the officers who testified at the suppression hearing indicated that, although they took
the time to ensure that Appellant understood his rights, they were unaware of
Appellant's mental retardation . Appellant's own expert, Dr. Pack, buttressed this
testimony when she explained that Appellant is skillful at masking his low intelligence
and that Appellant can appear to understand more than he actually does.
Further, although Appellant argues that the polygraph examiner violated
established procedure both by performing a polygraph examination upon a mentally
retarded person and by forming a conclusion as to the subject's veracity after
performing only one (1) examination, we, like the trial court, fail to see the relevance of
"See Canler v . Commonwealth , Ky., 870 S.W.2d 219, 221 (1994) .
"See Silverburg v. Commonwealth , Ky., 587 S.W.2d 241, 244 (1979) ; Morgan v .
Commonwealth , Ky., 809 S.W .2d 704, 707 (1991) ; Powell v . Commonwealth , Ky.App .,
994 S.W.2d 1 (1998) .
"Lewis v . Commonwealth , Ky., 42 S.W.3d 605, 612 (2001) .
these facts to the voluntariness inquiry . Appellant's own expert testified to her opinion
that polygraph examinations are unreliable regardless of the subject's IQ, and this Court
has consistently disallowed testimony at trial regarding polygraph results - regardless
of compliance with administrative regulations - based on our similar conclusions as to
the reliability of such examinations ." Finally, we observe that, even if the officers
possessed no legitimate basis for confronting Appellant with polygraph results
demonstrating deception, the "employment of a ruse, or 'strategic deception,' does not
render a confession involuntary so long as the ploy does not rise to the level of
compulsion or coercion ."" We find nothing inherently or objectively coercive about the
interrogation in this case, and the trial court thus properly denied Appellant's motion to
suppress his videotaped confession .
Appellant alternatively argues that the matter should be remanded to the trial
court for reconsideration because the trial court failed to consider evidence relevant to
its voluntariness determination when it sustained objections from the Commonwealth
regarding certain testimony. We observe, however, that Appellant renewed his motion
to suppress after a first jury trial ended with a hung jury, and thus much of this
testimony was before the trial court at the time the trial court denied the renewed
motion . In any event, however, the substance of this avowal testimony would not
"See Morton v. Commonwealth , Ky., 817 S .W .2d 218, 222 (1991). See also
infra notes 22 and 23 and surrounding text .
"Springer v . Commonwealth , Ky., 998 S.W.2d 439, 447 (1999) .
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"require a conclusion that [Appellant's] statements were involuntary,"" and thus no
remand is warranted .'9
2 . CIRCUMSTANCES SURROUNDING APPELLANT'S CONFESSION
Although we hold that the trial court properly denied Appellant's motion to
suppress his videotaped confession, we find that the trial court committed reversible
error when it prohibited Appellant from introducing evidence concerning the
circumstances under which he made that confession . Specifically, the trial court
prohibited Appellant from introducing evidence that he confessed to committing the
crimes only after Lt. Payton informed him that he had failed a polygraph examination
and that the polygraph examination in question was not conducted in accordance with
administrative regulations and accepted procedures . We agree with Appellant that the
trial court's ruling was erroneous and prejudicial .
In Crane v . Kentucky ,2° the United States Supreme Court held that a defendant's
right to present a meaningful defense includes the right to present evidence regarding
the credibility of his or her confession :
[T]he physical and psychological environment that yielded
the confession may . . . be of substantial relevance to the
ultimate factual issue of the defendant's guilt or innocence.
Confessions, even those that have been found to be
voluntary, are not conclusive of guilt. And, as with any other
part of the prosecutor's case, a confession may be shown to
be "insufficiently corroborated or otherwise . . . unworthy of
belief." Indeed, stripped of the power to describe to the jury
the circumstances that prompted his confession, the
defendant is effectively disabled from answering the one
question every rational juror needs answered : If the
"Lewis v. Commonwealth , supra note 15 at 612.
19 1d .
20476 U .S . 683, 106 S.Ct . 2142, 90 L.Ed .2d 636 (1986) .
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defendant is innocent, why did he previously admit his guilt?
Accordingly, regardless of whether the defendant marshaled
the same evidence earlier in support of an unsuccessful
motion to suppress, and entirely independent of any
question of voluntariness, a defendant's case may stand or
fall on his ability to convince the jury that the manner in
which the confession was obtained casts doubt on its
credibility.
Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants "a meaningful
opportunity to present a complete defense." We break no
new ground in observing that an essential component of
procedural fairness is an opportunity to be heard . That
opportunity would be an empty one if the State were
permitted to exclude competent, reliable evidence bearing
on the credibility of a confession when such evidence is
central to the defendant's claim of innocence. In the
absence of any valid state justification, exclusion of this type
of exculpatory evidence deprives a defendant of the basic
right to have the prosecutor's case encounter and "survive
the crucible of meaningful adversarial testing ." 2t
The Commonwealth argues that Kentucky's long-standing exclusion of evidence of
polygraph resuIts, 22 and rejection of any reference to polygraph examinations ,23
constitutes a "valid state justification" for the trial court's ruling . We hold, however, that,
in the circumstances of this case, the defendant's right to present a defense trumps our
desire to innoculate trial proceedings against evidence of dubious scientific value .
-' Id . at 476 U .S . 683, 688-691, 90 L .Ed .2d 636, 644-645 (citations omitted) .
See Morton v. Commonwealth , sugra note 16 at 222 ; Ice v. Commonwealth ,
Ky., 667 S .W.2d 671, 675 (1984); Perry v. Commonwealth , ex rel. Kessinger , 652
S.W.2d 655, 662 (1983) ; Henderson v. Commonwealth , Ky., 507 S .W.2d 454, 460
(1974) .
22
23See Morgan v. Commonwealth , supra note 14 at 706; Baril v. Commonwealth ,
Ky., 612 S .W.2d 739, 743 (1981) ; Stallings v .Commonwealth , Ky., 556 S .W.2d 4, 5
(1977) .
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The crux of Appellant's defense is that he was coerced and coached into a
confession by the interrogation techniques - including the use of a polygraph
examination - employed by Lt . Payton and Det. Kearney . Appellant contends that
when the investigating officers informed him that he had failed the polygraph
examination and that he had lied to Lt. Payton in the process, he - in large part
because of his limited intellectual capabilities (see Part III(A)(3), supra ) - confessed to
a crime he did not commit. By preventing Appellant from making any reference to the
polygraph examination, the trial court pulled the proverbial rug out from under
Appellant's defense and left Appellant unable to present the jury with the factual
circumstances that he alleged caused him to confess falsely .
While this Court's position on the admissibility of polygraph evidence is clear, we
also recognize that "[e]vidence relating to the circumstances surrounding [incriminating]
statements . . . may be indispensible to [an] appellant's right to present a defense to the
crime charged ."" In Commonwealth v. Hall ," the Court of Appeals reversed a trial
court order suppressing allegedly incriminating statements made "[p]rior to, and in
preparation for, [a polygraph] examination . . . in the same room where the polygraph
equipment was located.
,26
The Hall panel, however, held that, although evidence of her
confession was admissible, Hall could choose to introduce the circumstances of that
confession- including the presence of the polygraph machine - at trial in order to
21Morgan v. Commonwealth , supra note 14 at 708.
2'Ky .App
21
.,
14 S .W.3d 30 (2000) .
Id . at 31 .
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"place before the jury all relevant evidence surrounding the circumstances of her
questioning . . . for the purpose of impugning the credibility of her confession .""
In support of its holding, the Hall panel relied upon an opinion from the Supreme
Court of Minnesota, State v. Shaeffer." The Shaeffer court addressed the defendant's
right to present a defense in circumstances factually analogous to those presented here
- i .e ., where "defense counsel . . . wanted to elicit some evidence about the polygraph
exam in order to show the jury that the interrogation leading to the confession had
coercive aspects to it."" The Shaeffer court held that such evidence was admissible
despite Minnesota's general prohibition against polygraph evidence:
Cases of both the United States Supreme Court and this
court hold that after the trial court denies a motion to
suppress a confession as an involuntary confession, the
defense may present evidence to the jury on the
circumstances surrounding the making of the confession[ .]
Notwithstanding the general inadmissibility of polygraph
evidence, the trial court had no real choice but to grant
defense counsel's request . . . . ..The choice rests with the
defense attorney as to whether or not to inject the polygraph
issue into the case for the purpose of attempting to show
that it or the technique was a coercive factor.""
We agree with the Shaeffer court and hold that, although polygraph evidence is
not admissible in Kentucky, a defendant - and only the defendant - has the right, as
a matter of trial strategy, to bring evidence of a polygraph examination before the jury to
" Id. at 33 . See also Id . ("[S]hould Hall challenge the credibility of those
statements, she may introduce all evidence relating to her questioning, including the
videotape [on which the polygraph equipment was visible.]") .
28
457 N .W.2d 194 (Minn . 1990) .
21
Id. at 195 .
So ld . at 196-197.
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inform the jury as to the circumstances in which a confession was made .
In the
circumstances of this case, we believe the trial court's exclusion of this evidence
prevented Appellant from placing relevant evidence as to the credibility of his
confession before the fact-finder, and we thus hold that the trial court erred to
Appellant's substantial prejudice when it prevented Appellant from informing the jury as
to the circumstances surrounding the disputed confession.
3. DR . PACK'S TESTIMONY
Although Dr. Pack testified at trial regarding the nature of Appellant's mental
retardation, the trial court prohibited Dr. Pack from testifying to her opinion that
Appellant's limited mental capacity could have caused him to confess falsely to a crime
that he did not commit . The trial court reasoned that this testimony was inadmissible
because it addressed the "ultimate issue" of Appellant's guilt or innocence . Appellant
preserved this allegation for our review by introducing Dr. Pack's testimony in an avowal
outside the presence of the jury:
Q:
A:
Q:
A:
Q:
Dr. Pack, are there specific areas in the - either the
videotaped statement or the transcript which you
reviewed which reflect confusion on behalf of Mr.
Rogers?
Yes. There were times he responded he was very
confident in a very strong voice he responded . There
were other times when he responded, but in a much
softer, much more hesitant voice . And then there
were times when he was asked questions and he
answered it, and then the officer questioned him
again, so he changed what he said or how he said it
or the language that he used . Didn't seem to
understand the difference in a tire tool and a crowbar.
Did you think it was significant that he didn't know
how to spell his middle name?
Yes .
Are there specific references to the statement that
you think demonstrate that John was either not using
language that he was familiar with or that he is
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A:
Q:
A:
Q:
A:
Q:
A:
somehow being led to say what he is saying to the
authorities?
Specifically where I suppose it's Detective Kearney
asked, "Okay. Do you not want a lawyer at this
time?" John said softly, "No ." And then the
detective's response was, "You don't? Okay. You
have to answer yes or no for me ." John said, "Yes,
uh, no," you know "yes, uh, no." He didn't know
which way to answer. And so the detective said
again, "You don't want a lawyer at this time ; correct,"
and he said "No," but in the very next line of
questioning, the officer said, "You understand and
know what you're doing; correct," and John answered,
"Yes." I'm not sure what the correct answer to that is,
if it's no or yes, and apparently John didn't know
either.
He frequently was responding whatever his
answer was, if he got an okay response - if
he didn't get okay from the detective, then he
seemed to try to modify what he said. He
didn't offer a lot of testimony that he initiated
that seemed to be his own word or fill in any
details or descriptions or information that
seemed to be volunteered .
Are there other references to the statement that
indicate those things?
He said things like, "I don't know how we got in," and
a lot of his responses were predicated with "I think" as
opposed to "I know or "I did" or "I saw." It's "I think,"
like he's trying to - he's hoping - he's guessing,
he's hoping he's getting the right answers .
Is this type of interrogation, if you're give someone in
John's situation who's got a 65 IQ and the adaptive
skills you've described, are they capable of creating a
story involving themselves in a crime that they didn't
really commit in response to that sort of interrogation?
Yes, I think he would be capable of that . I think a
person of his ability would be capable of that or of
trying - attempting to repeat back details or
information that he had been given .
So if the police suggested that this is what he was
going to say, he is an individual that would say what
they told him to say?
I think under some circumstances, he would do that if
he thought that - perhaps that there was going to be
a lesser punishment or that he was going to get home
or even that he was going to get to have a cigarette .
- 1 8-
Q:
A:
Q:
A:
Q:
A:
Q:
A:
And are there any case studies of instances where
mentally retarded people in fact falsely - have falsely
confessed to crimes they did not do?
Yes, there are numerous case studies that document
that.
And is that something that you rely upon in your field?
Yes .
People that are mentally retarded in situations where
they're being interrogated and told by their
interrogator that they're lying and - or perhaps
confronted with statements that we know you did it,
we have evidence that you did it or along that lines,
what would - how would a mentally retarded
individual react to that sort of interrogation? And we
had earlier talked about stress . What other things
would you expect to see?
It might create doubt in his own mind as to what
happened, and it might cause him to be further - to
rethink what he said to try to get out of the situation
again, to - particularly, as I said, if he thinks that the
consequences are going to be greater if he stays with
the story he's told or the consequences are going to
be greater if he changes his story to what he thinks
that the authority figure wants him to say.
Is that irregardless of what the truth is?
Yes
Appellant contends that Dr. Pack's expert opinion was admissible and argues that the
trial court erred by excluding this portion of Dr. Pack's testimony . We agree with
Appellant that the trial court's stated basis for excluding this testimony - i .e., that it
involved the "ultimate issue" at trial - is not relevant to the admissibility inquiry and
therefore does not support the trial court's ruling . However, we cannot determine from
the record before us whether some or all of Dr. Pack's testimony constituted an expert
opinion admissible under the Kentucky Rules of Evidence .
KRE 702 governs the admissibility of expert opinion testimony :
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
- 1 9-
knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise ."
In Stringer v. Commonwealth , 32 we interpreted KRE 702 as abrogating the former
common law, "ultimate issue" rule and held that:
The real question should not be whether the expert has
rendered an opinion as to the ultimate issue, but whether the
opinion "will assist the trier of fact to understand the
evidence or to determine a fact in issue." Generally, expert
opinion testimony is admitted when the issue upon which the
evidence is offered is one of science and skill, and when the
subject matter is outside the common knowledge of jurors ."
Thus, KRE 702 authorizes the introduction of expert opinion testimony where :
(1) the witness is qualified to render an opinion on the
subject matter, (2) the subject matter satisfies the
requirements of Daubert v. Merrell Dow Pharmaceuticals .
Inc . , 509 U .S. 579, 113 S .Ct. 2786, 125 L.Ed .2d 469 (1993),
(3) the subject matter satisfies the test of relevancy set forth
in KRE 401, subject to the balancing of probativeness
against prejudice required by KRE 403, and (4) the opinion
will assist the trier of fact per KRE 702 . 34
Although the trial court's ruling predated the Stringer opinion, Strin er merely
interpreted KRE 702, which had been adopted at the time of Appellant's trial . Thus,
while the trial court improperly framed the issue by focusing upon whether Dr. Pack's
testimony embraced an "ultimate issue," the question of whether Dr. Pack's testimony
constituted "specialized knowledge [that would] assist the trier of fact to understand the
evidence or to determine a fact in issue "35 was part of the relevant inquiry . While we
3 KRE 702 .
3 'Ky ., 956 S.W .2d 883 (1997) (citation
omitted) .
33
Id . at 889 (citations omitted) . .
34
Id . at 891 .
35 KRE 702 .
-20-
believe that at least portions of Dr. Pack's excluded testimony would have assisted the
trier of fact by providing an explanation for Appellant's "confession" that would rebut the
common assumption that people do not ordinarily make untruthful inculpatory
statements, the trial court's misconstruction of the relevant inquiry meant that it did not
evaluate which portions of Dr. Pack's testimony would have assisted the jury. Nor did it
address the other three-fourths of the Stringer analysis . Although no one appears to
dispute Dr. Pack's qualifications (Stringer factor #1), the trial court's ruling excluding this
testimony on "ultimate issue" grounds left unanswered questions relating to the
scientific reliability (Stringer factor #2) of testimony linking mental retardation and false
confessions 3' and whether, even if generally scientifically reliable, Dr. Pack's opinions
as to the reliability of Appellant's individual "confession" satisfied the "prejudice v.
probativeness" test of KRE 403 (Stringer factor #3) .
See Holloman v. Commonwealth , Ky ., 37 S.W.3d 764, 767 (2001) (evidence
that defendant was prone to manipulation, suggestion, and intimidation because of his
mental retardation "should not have been excluded on the basis of relevancy because it
was permissible evidence bearing directly on the reliability of his statements .") Pritchett
v . Commonwealth , 557 S .E .2d 205, 208 (Va . 2002) (psychiatric testimony connecting
mental retardation and false confessions "presented information on subjects unfamiliar
to jury that would assist it in determining the reliability of [the defendant's] confession .") ;
United States v. Shay , 57 F .3d 126, 129-30 (1St Cir. 1995) (psychiatrist's testimony that
defendant suffered from a mental disorder that caused him to make false statements
inconsistent with his self-interest "could have 'exploded common myth' about evidence
vital to the [prosecution's] case .") ; United States v. Hall, 93 F .3d 1337, 1345 (7th Cir.
1996) ("It was precisely because juries are unlikely to know that social scientists and
psychologists have identified a personality disorder that will cause individuals to make
false confessions that the testimony would have assisted the jury in making its
decision .") .
36
3'We observe, however, that in its recent opinion holding that the Eighth
Amendment to the United States Constitution prohibits capital punishment for mentally
retarded persons, the United States Supreme Court has taken note of the phenomenon
of mentally retarded persons falsely confessing to crimes they did not commit . Atkins v.
Vim inia,
U .S .
n .25, 122 S.Ct. 2242, 2252 n .25, 153 L .Ed .2d 335,
n .25
(2002) .
-2 1-
Accordingly, upon remand, the trial court should conduct an evidentiary hearing
to determine whether the proffered testimony is admissible under KRE 702, as
interpreted by Strin er and should focus upon whether Dr. Pack's proffered testimony is
sufficiently reliable," and, if so, whether the KRE 403 relevancy inquiry warrants
limitations on the scope of Dr. Pack's testimony .
B . JURY INSTRUCTIONS
The trial court instructed the jury only as to the indicted offenses of Murder, FirstDegree Robbery, and First-Degree Burglary, and denied Appellant's request that it
instruct the jury regarding the law of voluntary intoxication and the lesser-included
offenses of First-Degree Manslaughter, Second-Degree Manslaughter, Reckless
Homicide, and First-Degree Criminal Trespass. We hold that the trial court erred when
it failed to instruct the jury regarding voluntary intoxication and First and Second-Degree
Manslaughter.
We begin our analysis by observing the well-settled principles that: (1) "it is the
duty of the trial judge to prepare and give instructions on the whole law of the case . . .
[including] instructions applicable to every state of the case deducible or supported to
any extent by the testimony" ; 39 and (2) although a defendant has "a right to have every
issue of fact raised by the evidence and material to his defense submitted to the jury on
proper instructions '1140 the trial court should instruct as to lesser-included offenses "'only
"See Daubert v. Merrell Dow Pharmaceuticals . Inc. , 509 U.S . 579, 113 S.Ct.
1786, 125 L.Ed.2d 469 (1993) ; Mitchell v. Commonwealth , Ky., 908 S .W.2d 100 (1995)
(adopting Daubert), overruled on other grounds, Fugate v. Commonwealth , Ky., 992
S .W.2d 931 (1999) ; Goodyear Tire and Rubber Co. v. Thompson , Ky., 11 S .W.3d 575,
578-9 (2000) .
"Taylor v. Commonwealth , Ky., 995 S .W.2d 355, 360 (1999).
40
Id .
-22-
if, considering the 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 .""'
In this case, Appellant did not testify at trial, and the only evidence introduced at
trial as to Appellant's level of intoxication or state of mind at the time he allegedly
committed the indicted offenses came in Appellant's alleged statement to Anderson and
in his videotaped confession . Therefore, we analyze each of Appellant's allegations of
error involving jury instructions that the trial court failed to give by determining whether
Appellant's prior incriminating statements provided sufficient evidence to justify the
instruction .
1 . VOLUNTARY INTOXICATION
In his videotaped confession, Appellant, a five (5) foot tall, eighteen (18) year
old, who weighed less than one hundred and twenty-five (125) pounds : (1) told the
investigating officers that he had consumed about twelve (12) beers the night that he
attacked Buchter; and (2) described his state of intoxication in stating "I was real
drunk." Additionally, Appellant demonstrated in his statement that he was unsure about
many of the details of the crimes, e.g ., where specifically they parked, how the group
gained entry into Buchter's home ("I . . . I don't know how we got in, but I know we got
in ."), the race of the victim, and the number of times that Appellant struck Buchter with
the weapon - an instrument that Appellant described at various times as a pipe, a tire
tool, and a crowbar.
4 ' Gabow v. Commonwealth , Ky., 34 S .W.3d 63, 72 (2000) (quoting Houston v.
Comonwealth , 975 S .W.2d 925, 929 (1998)) .
-23-
A voluntary intoxication instruction is justified only when there is evidence that
the defendant "was so drunk that he did not know what he was doing,"" or when the
intoxication "'negatives the existence of an element of the offense ."' .43 Although we
agree with the Commonwealth that mere drunkenness does not equate with the
Kentucky Penal Code's definition of the "defense" of voluntary intoxication, 44 we believe
the evidence here demonstrated more than "mere drunkenness" and supported the
requested instruction. We find that the jury in this case reasonably could have
concluded that Appellant's intoxication inhibited his capacity to form the intent
necessary to commit the crimes charged in the indictment. Accordingly, we hold that, if
the evidence is the same at Appellant's retrial, the trial court should instruct the jury as
to the law of voluntary intoxication .45
2 . LESSER-INCLUDED CRIMINAL HOMICIDE OFFENSES
In describing his conduct that caused Buchter's death, Appellant consistently
denied that he intended to kill Buchter. In his alleged statement to Anderson, Appellant
specifically stated that he did not intend to kill Buchter . In his videotaped statement,
Appellant first stated :
4'
Meadows v . Commonwealth , Ky., 550 S .W.2d 511, 513 (1977) .
41 Mishler v . Commonwealth , Ky., 556 S .W.2d 676, 679 (1977) . See also supra
note 54 .
See e .g ., Jewell v. Commonwealth , Ky., 549
S .W.2d 807, 812 (1977) ("Mere
drunkenness will not raise the defense of intoxication ."), overruled in part , Payne v.
Commonwealth , Ky., 623 S.W.2d 867, 870 (1981) .
44
45
Pursuant to Fields v. Commonwealth , Ky., 12 S.W.3d 275, 282 (2000), this
instruction would also entitle Appellant to an instruction on Second-Degree
Manslaughter . Id . ("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 seconddegree manslaughter as a lesser included offense ; and the failure to do so is prejudicial
error ." (citation omitted)).
-24-
I started panicking . I started swinging the tire tool up and
down . . . the weapon that I had. I think I hit him more than I
thou_ hq t I did .
And later stated :
I don't know how many times I hit him . I was drinking and I
got scared . . . nervous, uh, you know. Like he was gonna
hit me or something, so I just started swinging the pipe .
Didn't mean to hit him with it.
Although the jury was certainly free to infer from the circumstances that Appellant
intended to cause Buchter's death, we hold that the Appellant's statements quoted
above also permitted reasonable doubts as to his state of mind at the time he allegedly
killed Buchter, and thus required the trial court to instruct the jury as to First and
Second-Degree Manslaughter. Again, Appellant specifically denied any intent to kill in
his alleged statement to Anderson . And, in his videotaped confession, Appellant
stated, "I think I hit him more than I thought I did ." These statements, considered in the
context of Appellant's explanation that he began hitting Buchter only after the man
began screaming, reasonably permits the inference that Appellant struck Buchter not
with the intention of killing him, but with the intention of incapacitating him to stop his
screaming - i.e. under circumstances that could constitute either First or SecondDegree Manslaughter. A finding of First-Degree Manslaughter would be proper if the
jury found that Appellant caused Buchter's death while intending only to cause him
serious physical injury .47 A finding of Second-Degree Manslaughter would be proper if
the jury believed that Appellant unintentionally caused Buchter's death while
"See .Commonwealth v. Wolford , Ky., 4 S .W.3d 534, 539-540 (1999) ("[W]here .
. . the evidence . . . does not conclusively establish [the defendant's] state of mind at
the time he killed the victim, it is appropriate to . . . leave it to the jury to sort out the
facts and determine what inferences and conclusions to draw from the evidence .") .
47KRS 507 .030(1)(a) .
-2 5-
"consciously disregard[ing] a substantial and unjustifiable risk that [death] [would]
occur" 48 when he struck him repeatedly with the weapon . Although we believe the jury
could reasonably have returned a verdict for either First or Second-Degree
Manslaughter, we do not believe it reasonably could have concluded that Appellant
failed to appreciate the risk that his repeated blows to Buchter's head would cause
Buchter's death ,49 and thus the trial court properly denied Appellant's request for a
Reckless Homicide instruction .
3 . FIRST DEGREE CRIMINAL TRESPASS
We find no merit to Appellant's suggestion that the trial court should have
instructed the jury regarding First-Degree Criminal Trespass as a lesser-included
offense to First-Degree Burglary . While First-Degree Criminal Trespass can be a
lesser-included offense of First or Second-Degree Burglary,5° such an instruction is
proper only where the jury could reasonably conclude that Appellant unlawfully entered
a home without the intent to commit a crime . Here, Appellant's statement is clear that
the group went to Buchter's home for an exclusively criminal purpose - i .e., to commit
a robbery - and thus Appellant's statement provides no basis for a First-Degree
Criminal Trespass instruction ." Nor do we believe that a proper voluntary intoxication
instruction affects this analysis because, under the evidence in this case, we see no
basis upon which a reasonable juror could conclude that Appellant was sober enough
48KRS 501 .020(3) .
49 See Adcock v . Commonwealth , Ky., 702 S .W.2d 440 (1986) .
" Martin v . Commonwealth , Ky., 571 S .W .2d 613, 614 (1978) .
"Commonwealth v . Sanders , Ky., 685 S.W.2d 557, 559 (1985) ("We do not have
testimony or circumstances [from which] the jury could infer that there was presence in
the house with no intent to commit a crime.") .
-26-
to "knowingly enter[] or remain[] unlawfully"" in Buchter's house, but was too
intoxicated to form the intent to commit a crime . Although voluntary intoxication cannot
negate the mental states of wantonness or recklessness," such intoxication may
negate the KRS 501 .030(2) "knowingly" mental state .54 The trial court properly denied
Appellant's request for a First-Degree Criminal Trespass instruction.
C. LIMITATION OF CROSS-EXAMINATION
Appellant's final claim of error is that the trial court erred to his prejudice when it
prevented him from cross-examining Lt. Payton and Anderson about alleged biases.
Specifically, Appellant wanted to cross-examine Lt . Payton about his August, 1996
disciplinary demotion to Sergeant after he was arrested for DUI and wanted to crossexamine Anderson regarding her felony charges that were at that time pending before
the Jefferson District Court . We hold that the trial court properly determined that this
proposed cross-examination was improper because Appellant has made "no showing
that the cross-examination would expose some motivation for testimony being given .' ,55
Avowal testimony revealed that both Lt./Sgt. Payton's demotion and Anderson's felony
charges arose well after the indictment in this case and that both were unrelated to
5'
KRS 511 .060(1).
" Brown v. Commonwealth , Ky., 575 S .W.2d 451, 452 (1979) .
See Robert G. Lawson & William H. Fortune, Kentucky Criminal Law, §26(b)(2) at 87 (LEXIS 1998) ("A person acts 'knowingly' under Kentucky law when he is
aware of the nature of his conduct (e .g ., entry into a dwelling) or of an attendant
circumstance . . . ; intoxication could result in a lack of awareness on the part of an
actor and thus has the potential to negate the mental state of knowledge .") . After all,
we have described the proof necessary for the voluntary intoxication defense as
"evidence sufficient to support a doubt that the defendant knew what he was doing."
Moore v. Commonwealth , Ky ., 771 S.W.2d 34, 36 (1989) (emphasis added) .
54
" Bray v. Commonwealth, Ky., 703 S .W.2d 478, 479 (1986) .
-27-
Appellant's prosecution . The trial court did not err in excluding the evidence of Payton's
demotion.
IV. CONCLUSION
For the above reasons, we reverse the judgment of the Jefferson Circuit Court
and remand this matter to the trial court for a new trial in accordance with this opinion .
Lambert, C .J . ; Johnstone and Stumbo, JJ., concur. Cooper, J ., concurs in part
and dissents in part by separate opinion in which Graves and Wintersheimer, JJ., join .
COUNSEL FOR APPELLANT :
Daniel T . Goyette
200 Civic Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
Frank William Heft, Jr.
Jefferson District Public Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
A. B . Chandler, III
Attorney General
Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
RENDERED : SEPTEMBER 26, 2002
TO BE PUBLISHED
*uVrente (mart of Xjenturkg
1997-SC-0851-MR
JOHN ELVIS ROGERS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HON . WILLIAM E . McANULTY, Jr., JUDGE
95-CR-0894
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I disagree with two aspects of the majority opinion . One relates to the extent of
polygraph evidence admissible upon retrial . The other relates to the majority's
conclusion that Appellant was not entitled to an instruction on first-degree criminal
trespass as a lesser included offense of first-degree burglary .
1 . Polygraph evidence.
I agree that Crane v. Kentucky , 476 U .S . 683, 106 S .Ct. 2142, 90 L .Ed .2d 636
(1986), permits Appellant to attack the credibility of his own confession by showing that
it was made in response to the polygraph examiner's statement that he had failed the
polygraph examination . However, I would not permit Appellant to challenge the
procedures used in administering the polygraph examination because that evidence
goes to the issue of whether Appellant did, in fact, fail the examination . If Appellant can
attack the validity of the polygraph examination, surely the Commonwealth can rebut
that attack with evidence that the examination was properly conducted and that
Appellant did, in fact, fail . This would then require a limiting admonition to the jury
similar to the one approved in State v. Schaeffer , 457 N .W.2d 194 (Minn . 1990), the
case upon which the majority primarily relies. In my view, however, the issue is not
whether Appellant passed or failed the examination but whether his confession was
induced by the assertion (correct or incorrect) that he had failed . I would limit the
polygraph evidence to that issue alone .
2 . First-degree criminal trespass .
Voluntary intoxication is a defense to an offense if it "[n]egatives the existence of
an element of the offense ." KRS 501 .080(1) . However, voluntary intoxication does not
negate a culpable mental state of wantonness because voluntary intoxication, itself,
supplies the element of wantonness . KRS 501 .020(3) . Even if Appellant was so
intoxicated as to negative the element of intent necessary to convict him of murder or
first-degree manslaughter, such would not be a complete defense but would only
reduce the offense to a wanton homicide, i.e. , second-degree manslaughter. Fields v .
Commonwealth , Ky., 12 S .W.3d 275, 282 (2000); Slaven v. Commonwealth , Ky., 962
S.W.2d 845, 857 (1997). However, there is no lesser offense of wanton robbery,
Slaven at 857, or wanton burglary . To the extent that intoxication negatives the
element of intent to commit a theft, "the theft element of robbery evaporates," and the
assault element is reduced to a charge of wanton assault . Id . Where, as here,
however, the assault element of the robbery charge merges with the homicide charge,
intoxication is an absolute defense to robbery. Id . Burglary also has two mens rea
elements, i .e. , knowingly entering or remaining in the building or residence of another
with the intent to commit a crime therein . KRS 511 .020 ; 511 .030; 511 .040 . If Appellant
was so intoxicated as to negative either the knowledge element or both the knowledge
and intent elements of burglary, intoxication is an absolute defense, but if the jury
believed that Appellant's intoxication negatived only the element of intent and not the
element of knowledge, Appellant would still be guilty of first-degree criminal trespass .
KRS 511 .060 . Thus, Appellant was entitled to an instruction on first-degree criminal
trespass as a lesser included offense of first-degree burglary .
Graves and Wintersheimer, JJ., join this opinion, concurring in part and
dissenting in part.
up- rant Tourt of WenturkV
1997-SC-0851-MR
JOHN ELVIS ROGERS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HON . WILLIAM E . MCANULTY, JUDGE
95-CR-0894
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court By Justice Keller Reversing
and Remanding, rendered September 25, 2002, shall be amended on page 21,
footnote 36, as attached hereto . Said modification does not affect the holding .
Entered : October 3, 2002 .
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