JASPER POLLINI V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 22, 2005
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2003-SC-0552-MR
JASPER POLLINI
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APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
02-CR-1146 AND 02-CR-1632
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Affirming in Part, Reversinq in Part
A jury of the Jefferson Circuit Court convicted Appellant, Jasper Pollini, for the
crimes of murder (complicity), first degree burglary (complicity), second degree burglary
(complicity), and receiving stolen property over $300 (complicity) in connection with an
early morning burglary spree which culminated with the murder of Byron Pruitt. During
the sentencing phase, the jury found as an aggravating circumstance that Appellant
murdered Pruitt while he was engaged in the commission of a first degree burglary and
fixed Appellant's sentence for the murder of Pruitt at life imprisonment without the
benefit of parole for twenty-five (25) years . Appellant was also sentenced to fifteen (15)
years, ten (10) years, and one (1) year, respectively, for the remaining crimes, with such
sentences ordered to run concurrently with the sentence on the murder conviction .
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Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) . For
the reasons set forth herein, we affirm all of Appellant's convictions in this case, but
vacate the sentence imposed on the murder conviction and remand for a new penalty
phase trial on noncapital murder .
In the early morning hours of May 7, 2002, Appellant, who was seventeen years
old at the time these crimes were committed, broke into Brian Murphy's garage and
stole some tools and a generator . Apparently unable to transport the generator,
Appellant returned to his nearby home and sought the assistance of Jason Edwards,
the boyfriend of Appellant's sister, Crystal Plank . Edwards drove Appellant back to the
area and the pair loaded the generator from Murphy's garage into the trunk of Edward's
car. Appellant told Edwards to stay in the car and then proceeded to use a screwdriver
to break into the nearby garage of Dan Ziegler .
Ziegler awoke shortly after 5 :00 a.m. to the sound of his alarm system beeping.
While investigating the source for the alarm, Ziegler went into his garage and saw
Appellant . Ziegler testified that he perceived Appellant to have a weapon in his hand,
but was not sure what it was. Ziegler told Appellant to stop what he was doing or he
would "blow his head off." Appellant fled from the scene and was chased into some
nearby woods by Ziegler. Ziegler testified that he soon heard a car drive away after
losing sight of Appellant in the woods. After returning to his home, Ziegler called 911
and his neighbor, Byron Pruitt, to report the incident and to advise Pruitt to check his
property . After talking with Ziegler, Pruitt armed himself with an automatic pistol and a
flashlight and began investigating the area .
Meanwhile, Appellant and Edwards drove back to Appellant's house . Edwards
removed the generator from his car, covered the car, and then went into the house .
Shortly after retreating into the house, Appellant asked Edwards to take him back to
Ziegler's residence to retrieve a toolbox he had left at the scene . When Edwards
refused to return to Ziegler's residence, Appellant persuaded his sister, Crystal Plank, to
drive him back to the scene to retrieve his toolbox .
Between sixteen and thirty minutes after first being confronted by Zeigler,
Appellant and Plank returned to the scene of the burglaries . Appellant stated that he
armed himself with a semi-automatic pistol immediately before his return to the scene of
the crimes because he had been threatened by Ziegler . Upon their return to the scene,
Appellant instructed Plank to turn off the lights on the car because he was about to get
out to retrieve the toolbox. As Plank stopped the car, she observed a flashlight coming
toward the car. Appellant hurriedly instructed Plank to back up ; however, Plank had
difficultly doing so due to poor visibility . Appellant then fired his gun out the window of
Plank's vehicle and the bullet pierced Pruitt in the throat. Pruitt died shortly thereafter
from his injury . Immediately after the shooting, Appellant and Plank fled the scene, but
were apprehended, along with Edwards, later that day.
Appellant asserts nine assignments of error upon which he requests relief. We
address each assignment of error in turn:
I . Voir Dire Questions
Appellant argues it was prejudicial error for the trial court to ask each prospective
juror the following question, "if you are on the jury, do you have any moral or religious or
conscientious objections that would prevent you from considering the death penalty as a
punishment and imposing it if you believe it appropriate?" The extent and
appropriateness of questioning during voir dire is a matter within the sound discretion of
the trial court . See Woodall v. Commonwealth , 63 S .W.3d 104, 116-118 (Ky. 2002) ;
Tamme v . Commonwealth , 973 S.W.2d 13, 25 (Ky. 1998) ; Grooms v. Commonwealth ,
756 S .W .2d 131, 134 (Ky. 1988) .
Appellant first asserts error in the trial court's use of the word "impose" because
such a word implies that the jurors must commit themselves to use of the death penalty
later at trial . We disagree . The full context of the trial court's question reads, "any . . .
objections that would prevent you from considering the death penalty . . . and imposing
it if you believe it appropriate?" (Emphasis added) . When considered in its proper
context, we find that the trial court's question does not imply an improper premise nor is
it likely to be misleading to a reasonable juror. See Wheeler v. Commonwealth , 121
S .W .3d 173, 179 (Ky. 2003) (jurors who could not impose the death penalty were
properly stricken for cause) ; Caudill v. Commonwealth , 120 S .W.3d 635, 654 (Ky. 2003)
(potential jurors may be excused for cause if the potential jurors are biased against
imposition of the death penalty) .
Appellant also asserts error with respect to the trial court's question regarding
whether the jurors had any "moral or religious or conscientious objections that would
prevent" consideration of the death penalty as a punishment. Appellant argues such an
inquiry violates the jurors' rights to religious freedom under the Kentucky and United
States Constitutions . This issue was not preserved and is raised by Appellant as
palpable error under RCr 10 .26. Appellant concedes that we addressed and rejected
essentially the same argument in Parrish v. Commonwealth , 121 S.W.3d 198, 202 (Ky.
2003) ("There was no violation of any provision of either the federal or state
constitutions" when the trial court asked each prospective juror "if they held any moral,
religious, spiritual or personal beliefs that would interfere with their service as jurors on
this death penalty case ."), but nonetheless urges reconsideration of the issue . After
careful review, we find the totality of the circumstances in this case do not compel
reconsideration of this issue and thus, we find no palpable error in the trial court's voir
dire question as cited above.
II. 911 Tapes
Appellant next argues that a tape recording of 911 telephone calls made by
Ziegler during the course of events in this case should have been excluded from
evidence because they were merely cumulative and overly prejudicial to Appellant . "It is
well settled that the admission of tape recordings at trial rests within the sound
discretion of the trial court ." Johnson v. Commonwealth , 90 S .W.3d 39, 45 (Ky. 2002)
(quoting United States v. Robinson , 707 F .2d 872, 876 (6th Cir.1983)) ; see also Cook v.
Commonwealth , 129 S.W.3d 351, 361 (Ky. 2004) ("The outcome of a KRE 403
balancing test is within the sound discretion of the trial judge, and that decision will only
be overturned if there has been an abuse of discretion, i.e., if the trial judge's ruling was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles .").
The tape recording introduced at trial contained three telephone calls made to
911 by Ziegler on the morning of Pruitt's death . The recording reflects that at 5 :47 a .m .
Zeigler called 911 to report a break-in to his garage and that the suspect had
subsequently fled from the scene . A second call made at 6 :04 a.m . by Ziegler reported
that he had heard a gunshot and someone yelling for him . The tape then reflects
Ziegler observing Pruitt coming towards him, having been shot in the throat, and the
911 operator instructing Ziegler to hold a cloth to Pruitt's throat to stop the bleeding .
During this call, Pruitt can be heard in the background emitting sounds as a result of his
fatal injury . A third call was made by Ziegler after he had assisted Pruitt.
Rule 403 of the Kentucky Rules of Evidence states, in part, that relevant
evidence may be excluded by the trial court if the "probative value [of the evidence] is
substantially outweighed by the danger of undue prejudice ." Alternatively, the trial court
may exclude relevant evidence where the presentation of such evidence is merely .
cumulative and thus, unnecessary for a full understanding of the case. Appellant
asserts that since Ziegler had already testified about the dramatic events which were
partially captured within the calls he made to 911, the tape recording was merely
cumulative and had little to no probative value. Appellant further asserts the tape
recording was overly prejudicial because the tape recording impermissibly bolstered
Ziegler's prior testimony and audibly portrayed suffering by Pruitt as he was dying . We
disagree .
It is generally accepted that evidence depicting gruesome, heinous, or unsettling
portrayals of the crime or of the victim, while prejudicial to the defendant, is not
excludable from the consideration of the jury unless such evidence becomes overly
prejudicial to the defendant because it is (1) irrelevant; or (2) relevant, yet unnecessary
for a full understanding of the case . See Johnson v . Commonwealth , 105 S.W.3d 430,
438 (Ky. 2003), Barnett v. Commonwealth , 979 S .W.2d 98, 102 (Ky. 1998) . In this
case, while Ziegler had previously testified regarding the events he witnessed and the
calls he made to 911 the morning of Pruitt's death, he could only estimate the
approximate time sequence for these events and calls. The 911 tape recording
established the exact times for the calls made by Ziegler and functioned to put the
sequence of events into context for the jury. Accordingly, we find the 911 tape to have
probative value and reject the suggestion that it is impermissibly cumulative .
See
Young v . Commonwealth , 50 S .W.3d 148, 169 (Ky. 2001) (videotape of death throes of
victim relevant to prove corpus delicti) .
Appellant argues, nonetheless, that the prejudicial effect of the tape recording
could have been greatly diminished if the Commonwealth had accepted the defense
counsel's offer to stipulate the time sequence of Ziegler's 911 calls . This Court has
repeatedly held that "a stipulation offer cannot provide the foundation for a KRE 403
argument on appeal" because "the prosecution is permitted to prove its case by
competent evidence of its own choosing, and the defendant may not stipulate away the
parts of the case that he does not want the jury to see." Johnson v. Commonwealth ,
105 S.W.3d 430, 438-39 (Ky. 2003) (quoting Barnett v. Commonwealth , 979 S .W.2d 98,
103 (Ky. 1998)) . We must therefore review the evidence as it was presented by the
Commonwealth and not how it might have been presented. When the probative value
of the 911 tape recording is considered in light of its potential prejudice to Appellant, we
find no abuse of discretion by the trial court when it allowed the tape recording to be
played to the jury.
III . Transfer of charges from juvenile to circuit court
Appellant next argues that indictment 02-CR-1632, charging him with second
degree burglary and receiving stolen property in connection with the burglary of
Murphy's garage, was improperly tried in circuit court. Because Appellant was
seventeen years old at the time these crimes were committed, juvenile court was
granted exclusive jurisdiction over the matters unless and until the matters were
properly transferred to circuit court pursuant to KRS 635.020 and KRS 640 .010. See
Osborne v. Commonwealth , 43 S .W.3d 234, 238-39 (Ky. 2001) .
In this case, Appellant concedes that a juvenile transfer order properly conferred
jurisdiction of the murder charge and the first degree burglary charge involving Ziegler's
garage to circuit court . Subsequent to this transfer order, second degree burglary and
receiving stolen property charges involving Murphy's garage were brought directly in
circuit court and consolidated with the previous charges contained in the juvenile
transfer order. At trial, Appellant requested both a directed verdict and a dismissal
based on the premise that jurisdiction for the subsequent charges was never conferred
on the circuit court .
Citing Commonwealth v. Varney , 690 S.W.2d 758, 760 (Ky. 1985) and RCr 8 .18,
the Commonwealth initially argues that Appellant's motions during trial were untimely
and, therefore, the issue was not properly preserved for review because Appellant failed
to challenge the validity of the subsequent charges by motion prior to trial. We
disagree . RCr 8.18 states, in part, "Defenses and objections based on defects in the
institution of the prosecution or in the indictment or information other than that it fails to
show jurisdiction in the court . . . may be raised only by motion before trial." (Emphasis
added) . RCr 8.18 goes on to instruct that "lack of jurisdiction . . . shall be noticed by the
court at any time during the proceedings ." Whether the subsequent charges were
within the scope of the juvenile transfer order is clearly jurisdictional in nature and thus,
RCr 8 .18 does not preclude, but rather preserves, review of this issue . The
Commonwealth's reliance on Varney is similarly misplaced since that case dealt with a
defendant's failure to timely object to a defect in an indictment that was completely
unrelated to whether the circuit court had jurisdiction to try the actual offenses . 690
S .W .2d at 760 .
Having found the issue to be properly preserved, we now consider whether the
circuit court had jurisdiction to try the second degree burglary and receiving stolen
property charges involving Murphy's garage . Juveniles, such as Appellant, who are
alleged to be youthful offenders pursuant to KRS 635.020 are entitled to certain
procedural safeguards, such as a preliminary hearing, before jurisdiction can be
properly transferred from juvenile court to circuit court. KRS 640.010. Despite the
holding of proper transfer proceedings for the murder and first degree burglary charges
involving Ziegler's garage, Appellant asserts it was error to bring the subsequent
charges directly in circuit court . Rather, Appellant argues the charges should have
been filed in juvenile district court and properly transferred through the holding of a
second set of transfer proceedings in accordance with the procedures set forth in KRS
640 .10 . We disagree .
In Osborne v. Commonwealth , 43 S.W .3d 234, 238 (Ky. 2001), this Court stated
that "it is the offender that is transferred to circuit court, not the offense ." Accordingly,
subsequent charges against a youthful offender may be brought directly in circuit court
without conducting a second set of transfer proceedings if (1) proper juvenile transfer
proceedings have previously been held and a valid transfer order from those
proceedings has been entered ; and (2) the subsequent charges "aris[e] out of the same
course of conduct that gave rise to the offense that caused the child to be transferred to
circuit court ." Id . Appellant argues that in order for charges to fall within the parameters
of being within the "same course of conduct that gave rise to the offense that caused
the child to be transferred to circuit court," all the charges must involve the same victim.
After careful review of KRS 610 .015(2) and KRS 635 .020(8), we find the
standard articulated in Osborne extends beyond just those offenses which involve the
same victim . KRS 61'0.015(2) states, "The Circuit Court shall try all misdemeanor,
violation, traffic offense, and status offense matters included in or which arise from the
act or series of acts which result in the trial of a child as an adult in the Circuit Court ."
KRS 635.020(8) reads in similar fashion, "All offenses arising out of the same course of
conduct shall be tried with the felony arising from that course of conduct, whether the
charges are adjudicated under this chapter or under KRS Chapter 640 and transferred
to Circuit Court ." From these statutes, we interpret the term "same course of conduct"
as it was utilized in Osborne to encompass all conduct which results in charges which
may be tried against the juvenile at the same time as the charges that caused the
juvenile to be transferred to circuit court. See RCr 6 .18 (allowing offenses to be
charged in the same complaint, indictment, or information if they are "of the same or
similar character or are based on the same acts or transactions connected together or
constituting parts of a common scheme or plan") and RCr 9 .12 (allowing offenses to be
tried together if they could have been joined in a single complaint, indictment,
information or uniform citation) .
In this case, the burglary of Murphy's garage was part of a continuous and
uninterrupted crime spree which culminated with the murder of Pruitt . The entire
sequence, beginning with the break-in to Murphy's garage and ending with the death of
Pruitt, lasted no longer than a few hours . These actions were interrelated enough to be
joined at trial and as such, they were interrelated enough to constitute the "same course
of conduct" as it is defined in Osborne .
IV. Jury Instructions
Appellant first asserts that his right to a unanimous jury verdict was violated in
this case when the trial court instructed the jury on alternate theories of wanton and
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intentional murder. In Davis v. Commonwealth , 967 S .W.2d 574, 582 (Ky. 1998), we
explained :
Nothing less than a unanimous verdict is permitted in a criminal case.
Unanimity becomes an issue when the jury is instructed that it can find the
defendant guilty under either of two theories, since some jurors might find
guilt under one theory, while others might find guilt under another . If the
evidence would support conviction under both theories, the requirement of
unanimity is satisfied . However, if the evidence would support a conviction
under only one of two alternative theories, the requirement of unanimity is
violated .
Id . (citations omitted) .
Appellant objected to the jury instruction at trial, arguing there was insufficient
evidence to support a theory that Appellant intentionally murdered Pruitt. When
determining whether it was error for the trial court to submit a specific theory to the jury,
this Court must determine whether the evidence, when considered in the light most
favorable to the Commonwealth, is sufficient to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant is guilty under that theory .
Commonwealth v. Benham , 816 S .W .2d 186, 187 (Ky. 1991) . Appellant argues there
was no direct evidence'to show that he had specific intent to murder Pruitt. In fact, to
the contrary, Appellant points to testimonial evidence from himself and Plank, the only
two witnesses at the scene of the shooting, which explains the shooting as simply a
regrettable accident that was intended only to frighten Pruitt away from chasing their
vehicle .
We have repeatedly held that specific intent need not be proven by direct
evidence. See , etc .., Parker v . Commonwealth , 952 S.W.2d 209, 212 (Ky. 1997) . It is
also axiomatic that the jury is not required to believe self-serving statements from the
defendant or any of his witnesses . See Edmonds v. Commonwealth , 906 S.W.2d 343,
347 (Ky. 1995) (citing Armstrong v. Commonwealth , 517 S .W .2d 233, 235 (Ky. 1975)) .
In Parker, we stated :
Proof of intent in a homicide case may be inferred from the character and
extent of the victim's injuries . Intent may be inferred from actions because
a person is presumed to intend the logical and probable consequences of
his conduct and a person's state of mind may be inferred from actions
preceding and following the charged offense .
952 S.W.2d at 212.
In this case, there is evidence to show (1) that Appellant intentionally brought a
loaded gun with him when he returned to the scene of the crime to retrieve his toolbox,
(2) that Appellant intended to shoot that gun when he pointed it out the window of
Plank's vehicle, and (3) that Appellant did indeed shoot Pruitt in the neck and jaw. The
evidence also tends to show that Appellant did not stop to investigate or provide
assistance when he observed Pruitt or his flashlight fall to the ground after the shooting,
and that Appellant did not contact police or emergency services when he returned to his
residence after the shooting . When viewed in the light most favorable to the
Commonwealth, we find the evidence is more than sufficient to support an inference
that Appellant intentionally murdered Pruitt and accordingly, the trial court did not err
with respect to this instruction .
Appellant next argues the trial court erred when it failed to include an instruction
on the lesser included offense of third degree burglary for breaking into Ziegler's and
Murphy's garages . In Houston v. Commonwealth , 975 S.W.2d 925, 929 (Ky. 1998), we
explained, "Although a trial judge has a duty to prepare and give instructions on the
whole law of the case, including any lesser included offenses which are supported by
the evidence, that duty does not require an instruction on a theory with no evidentiary
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foundation ." Id . (citations omitted) . After careful review, we find an instruction on third
degree burglary has no evidentiary support in this case.
Under Kentucky law, the only distinction between second and third degree
burglary is the fact that second degree burglary involves the burglary of a "dwelling" and
third degree burglary involves the burglary of a "building ." KRS 511 .030 and KRS
511 .040 . Appellant contends an instruction on third degree burglary was warranted in
this case because the attached garages could have been considered "buildings" that
were separate and apart from the attached "dwellings ." We disagree .
"Dwelling" and "building" are defined in KRS 511 .010 as follows :
(1) "Building," in addition to its ordinary meaning, means any structure,
vehicle, watercraft or aircraft:
(a) Where any person lives ; or
(b) Where people assemble for purposes of business, government,
education, religion, entertainment or public transportation .
Each unit of a building consisting of two (2) or more units separately
secured or occupied is a separate building.
(2) "Dwelling" means a building which is usually occupied by a person
lodging therein .
(Emphasis added) . It is implicit from this statute that individual units of a building
cannot be considered "separate buildings" unless those units are separately
secured or occupied .
There is no evidence to show, and Appellant does not contend, that
Murphy's and Ziegler's attached garages were separately secured or occupied .
Furthermore, a fair reading of the statute leads us to conclude that the drafters of
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this section of the penal code did not envision attached garages as "units"
separate and apart from the residence building . Cf. Stewart v. Commonwealth ,
793 S.W.2d 859 (Ky. App. 1990) (separately secured basement is part of the
"dwelling" house located directly above and not a separate "building") . See also ,
State v. Otto , 529 N.W.2d 193, 195-96 (S .D . 1995) (noting that "most states
which have addressed the issue have concluded that an attached garage falls
within the definition of occupied structure or dwelling for purposes of burglary
statutes . . . .") . Accordingly, we hold the trial court did not err by failing to tender
a jury instruction on the lesser included offense of third degree burglary because
the attached garages in this case were part and parcel with the residences
occupied by Murphy and Ziegler . See Johnson v . Commonwealth , 875 S .W.2d
105, 107 (Ky. App. 1994) (screened-in porch that was attached to the house is
part of the "dwelling" house and not a separate "building") .
Appellant also argues the trial court erred when it failed to instruct the jury
on the lesser included offense of first degree manslaughter with intent to cause
serious physical injury. Although an instruction on the above theory was included
among Appellant's fifteen page list of proposed jury instructions which was
tendered to the trial court, there is no evidence to show that Appellant's counsel
took any measures to call the trial court's attention to this potential oversight at
trial or to specifically object to the instruction's exclusion despite numerous
opportunities to do so . In fact, after a lengthy conference with the parties
regarding jury instructions, the record indicates the parties were instructed by the
trial court to review the jury instructions among themselves and attempt to reach
an agreement as to the final wording of the instructions . If there were any further
14
issues that could not be resolved between the parties, they were instructed to
alert the trial court . The record reflects the final instructions were presented to
Appellant's counsel and to the trial court the next day and that there were no
objections to the final instructions at that time or during any time when they were
being read to the jury.
For adequate preservation of exceptions to jury instructions, the Kentucky
Rules of Criminal Procedure require evidence on the record of either (1) a
specific objection or (2) the tendering of an instruction in such a manner which
presents the party's position "fairly and adequately" to the trial judge. RCr
9.54(2) . In Grooms v. Commonwealth , 756 S .W.2d 131 (Ky. 1988), we stated :
In many cases, as in this one, counsel submit a raft of tendered
instructions, any one of which may be overlooked by the trial court. The
failure to instruct upon a matter which would have been surely instructed
upon if the oversight had been called to the attention of the court by
counsel is not error.
Id. at 40 . In this case, we find that Appellant did not meet his duty to "fairly and
accurately" present his position on this issue to the trial court and thereby
preserve this issue for review. See Davis v . Commonwealth , 967 S.W.2d 574,
581 (Ky. 1998) .
Appellant's counsel also objected to the wording of certain jury instructions
both during and after the Commonwealth's closing argument. Among his
arguments, Appellant raises an interesting issue regarding a disparity between
Commonwealth v. Hager, 41 S .W.3d 828, 846 (Ky . 2001), 1 Cooper, Kentucky
Instructions to Juries (Criminal ) §11 .07 (4t" ed . Anderson 1993), and KRS
503 .050. Appellant argues the instruction on self-protection in this case should
have stated that such a defense is available if Appellant "believed Byron Pruitt
15
was there about to use physical force upon him," such wording being in
conformity with Cooper, supra , and Halter , supra . The jury instructions chosen
by the trial court specified that a self-protection defense was available if
Appellant believed Pruitt "was about to use unlawful physical force upon him,"
such wording being in conformity with KRS 503.050. (Emphasis added) .
Yet, Appellant failed to timely preserve his arguments for review as
required by RCr 9 .54 . Commonwealth v. Collins , 821 S.W.2d 488 (Ky. 1991)
(RCr 9.54(2) requires arguments or objections to be made prior to the time the
Court instructs the jury in order to preserve the issue for review on appeal) .
Since preservation is lacking, we decline to address his arguments any further
since none of them warrant review pursuant to RCr 10.26 .
V. Sufficiency of the Evidence
Appellant claims the trial court erred when it overruled his motions for directed
verdicts on the first degree burglary of Ziegler's garage and on the use of first degree
burglary as an aggravating sentencing factor in the murder of Pruitt. When considering
whether the trial court erred in the denial of a directed verdict, this Court must consider
all evidence favoring the Commonwealth as true and from that evidence, determine
whether it is sufficient to induce a reasonable jury to believe beyond a reasonable doubt
that the defendant is guilty of each and every element of the crime . Commonwealth v.
Benham , 816 S .W.2d 186, 187 (Ky. 1991) .
During the penalty phase of Appellant's trial, the trial court submitted one
aggravating circumstance for the jury's consideration - whether Appellant was engaged
in the commission of a first degree burglary at the moment he shot Pruitt. Appellant
argues there was insufficient evidence to support the submission of this aggravating
16
circumstance to the jury and accordingly, Appellant's murder sentence must be vacated.
For the reasons set forth herein, we agree.
KRS 532 .025(3) states that a recommendation of death, or imprisonment for life
without benefit of probation or parole, or imprisonment for life without benefit of
probation or parole until the defendant has served a minimum of twenty-five (25) years
shall not be imposed unless at least one statutory aggravating circumstance is found
beyond a reasonable doubt and designated in writing . In this case, Appellant's
sentence of life without benefit of probation or parole until he has served a minimum of
twenty-five (25) years was based on the statutory aggravating factor that Pruitt was
murdered while Appellant was engaged in the commission of a first degree burglary .
KRS 532 .025(2)(a)(2) .
KRS 511 .020 defines burglary in the first degree as follows :
(1) A person is guilty of burglary in the first degree when, with the intent to
commit a crime, he knowingly enters or remains unlawfully in a building,
and when in effecting entry or while in the building or in the immediate
flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon ; or
(b) Causes physical injury to any person who is not a participant in the
crime ; or
(c) Uses or threatens the use of a dangerous instrument against any
person who is not a participant in the crime.
The evidence most favorable to the Commonwealth shows that upon being
confronted by Ziegler in his garage, Appellant fled from the scene and was chased into
the woods by Ziegler. Ziegler reported that he lost track of Appellant and returned to his
residence to telephone emergency services . Appellant returned to his accomplice's
vehicle and the pair drove to Appellant's home . Shortly after returning home, Appellant
asked his accomplice, Edwards, to drive him back to the area in order to recover a
17
toolbox he had left at the scene . When Edwards refused to drive back to the scene,
Appellant was able to persuade his sister, Plank, to drive him . Between sixteen and
thirty minutes after first being confronted by Ziegler, Appellant and Plank returned to the
area surrounding Ziegler's house . It was upon this return to the area that Pruitt was
murdered. The Commonwealth argues that Appellant's return to the area of the
burglaries was merely a continuation of the burglary that was in progress when
Appellant was first confronted by Ziegler. We disagree .
When interpreting the provisions of the Kentucky penal code, KRS 500 .030
states, "All provisions of this code shall be liberally construed according to the fair
import of their terms, to promote justice, and to effect the objects of the law." In Bailey
v. Reeves, this Court stated, "[w]e have a duty to accord to words of a statute their
literal meaning unless to do so would lead to an absurd or wholly unreasonable
conclusion ." 662 S.W.2d 832, 834 (Ky. 1984) .
The words of the first degree burglary statute, when read as a whole, clearly
define the beginning point and the ending point of a first degree burglary in Kentucky .
The statute indicates that a first degree burglary begins "when in effecting entry" into a
building, continues "while in the building," and ends at the conclusion of "the immediate
flight therefrom ." KRS 511 .020(1) . Since a first degree burglary ceases upon the
conclusion of a perpetrator's "immediate flight" from the building, the determinative
question for this Court is whether Appellant was still engaged in the first degree burglary
of Ziegler's garage when he returned to the area after an initial flight therefrom . After
careful review, we hold that he was not.
The Commonwealth argues in the alternative that even if Appellant's return to the area
of the burglaries was not a continuation of the first degree burglary of Zeigler's garage,
there is sufficient evidence to support the aggravating factor in this case based on a
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In Baker v. Commonwealth , 860 S .W.2d 760, 761 (Ky. 1993), this Court was
presented with the question of whether a burglar who was apprehended shortly after
fleeing from the residence he had just burglarized was still engaged in "immediate flight
therefrom" when he was apprehended by bystanders . In Baker, the defendant
threatened use of a dangerous weapon not while at the scene of the burglary, but at the
time he was apprehended by bystanders . Id. The Baker Court stated :
It seems clear that the aggravating factors in the first degree burglary
statute were enacted to punish those who harm or threaten harm to those
at the scene of a burglary . The statute does not limit itself to consideration
of acts which take place within the curtilage of the dwelling being
burglarized, but is written to protect occupants, neighbors, and passersby.
Id . at 761-62 . The Court ultimately concluded that the defendant was engaged in
"immediate flight" at the time he was apprehended by bystanders . Id .
In this case, a bystander was murdered at or near the scene of the burglary,
which comports with the general types of circumstances and victims the statute was
intending to protect . See Baker, supra . Recently, in Cosbv v. Commonwealth , 147
S .W.3d 56, 59-60 (Ky. 2004), this Court determined that a defendant who committed a
crime while awaiting sentencing on a criminal charge to which he had previously pled
guilty could not be sentenced to a concurrent sentence for the two crimes pursuant to
KRS 533.060(3) . KRS 533.060(3) prohibits concurrent sentencing for two crimes when
one of the two crimes was committed while the defendant was "awaiting trial" for the
other crime. Cosbv held that in order to avoid an absurd result and to uphold the
theory that Appellant's return to the area constituted attempt to commit a second first
degree burglary . There does not appear to be sufficient evidence to support this theory
in the record and even if there was sufficient evidence to support this theory, this Court
does not allow parties to change their theories on appeal or to vary the theme they
offered at trial. See Smith v. Commonwealth , 41 S .W.3d 458, 461 (Ky. App. 2001)
(citing Kennedy v. Commonwealth , 544 S.W.2d 219, 222 (Ky.1976)) . Accordingly, we
decline to address this argument.
19
integrity and fair import of the statute, it was reasonable and necessary to construe the
term "awaiting trial" to include a defendant who was technically "awaiting sentencing ."
Yet, this case is quite distinguishable from the facts in Baker, supra , and the
policy reasons set forth in both Baker and Cosby, supra . In Baker, the defendant was in
the process of fleeing from the scene of the crime, not returning, when he was
confronted by bystanders . According to the American Heritage Dictionary of the English
Language (4th ed. 2000), the word "flight" is defined as "the act or an instance of running
away, an escape." The word "immediate" is defined as "occurring at once; instant" and
"of or near the present time ." Id .
Because it is an "act" or an "instance," flight cannot continue ad infinitum, but
must come to a point of some conclusion . In People v. Thon vilay, 62 Cal . App. 4th 71,
72 Cal . Rptr.2d 738 (1998), the California Appellate Court stated :
A burglary is in progress after the original entry while the perpetrator is
fleeing in an attempt to escape. Likewise, it is still in progress so long as
immediate pursuers are attempting to capture the perpetrator or to regain
stolen property . A burglary is complete when the perpetrator has
eluded any pursuers and reached a place of temporary safety.
Id . at 78, 72 Cal . Rptr.2d at 742 (quoting with approval the jury instructions given by the
trial court) (emphasis added) .
When considering what the fair import of the term "immediate flight" might be, it is
logical and practical to assume that an "immediate flight" is ceased for the purposes of
determining the completion of a first degree burglary at the point when the perpetrator
has reached a place of temporary safety after having eluded any pursuers and escaped
from the scene (which includes the immediately surrounding area) . The concept of a
perpetrator returning to the scene of the crime once that perpetrator has successfully
20
completed an initial flight from that scene is too incongruous with the concept of
"immediate flight" to be fairly read into the statute .
Furthermore, reading the circumstances of this case into the statute would create
an indefinite and arbitrary law. For instance, if returning to the scene of a burglary to
retrieve incriminating evidence after one has successfully fled from that scene is
compatible with the concept of "immediate flight," it follows that this Court would next
have to arbitrarily set some kind of temporal limitation on the perpetrator's return, such
as an hour or a day, in order to avoid reading the term "immediate" completely out of
the statute . Moreover, a contrary result in this case would make it nearly impossible to
determine when such a return to the scene is the continuation of a past crime or the
beginning of a new crime .
Finally, we note that reading the circumstances of this case into the term
"immediate flight" would serve no necessary procedural or policy purpose since such
circumstances are sufficiently provided for in other areas of the Kentucky penal code .
For example, if Appellant's return to the area of the crime was for the purpose of reentering Ziegler's garage or some other building with the intent to commit a crime,
Appellant could have been charged with criminal attempt to commit first degree
burglary . See KRS 506 .010; Commonwealth v. Prather , 690 S.W.2d 396 (Ky. 1985)
(upholding attempted robbery conviction where defendant was arrested while driving to
the place to be robbed) . As it was, Appellant was not charged with any such additional
crimes because his tool box was not located inside any building or dwelling, but was
found on a garbage can near Ziegler's garage door .
In sum, we find that a first degree burglary pursuant to KRS 511 .020 ceases
upon the conclusion of a perpetrator's "immediate flight" from the building. Appellant's
21
flight necessarily ended in this case when he reached his home after successfully
escaping from Ziegler's garage and the immediately surrounding area . Accordingly,
there was insufficient evidence to support the jury's determination that the murder of
Pruitt was committed while Appellant was engaged in the commission of a burglary in
the first degree . Appellant's sentence for murder is vacated and remanded to the trial
court for a new penalty phase trial on noncapital murder .
Since the first degree burglary of Ziegler's garage ceased at the point Appellant
reached his home after his initial flight from the scene of the burglary, we next address
Appellant's argument that there was insufficient evidence to support his conviction of
first degree burglary of Ziegler's garage . He contends it was unreasonable for the jury
to conclude that Appellant was armed with a deadly weapon during that burglary .
Ziegler testified at trial that when he saw Appellant inside his garage, he
perceived Appellant to have a weapon in his hand . In addition, it is undisputed that
Appellant had a handgun when he returned to the area shortly after the completion of
the first degree burglary . Appellant alleges this evidence is insufficient because Ziegler
could not affirmatively state that the item in Appellant's hand was a handgun . We
disagree . "It is a well-settled rule in this Commonwealth that a conviction may be
obtained on circumstantial evidence ." Baker v. Commonwealth , 860 S .W.2d 760, 761
(Ky. 1993) (citation omitted) . Despite Ziegler's inability to affirmatively state that the
item he saw in Appellant's hand was a handgun, we find that when considered in its
entirety, the evidence is sufficient to convince a reasonable juror that Appellant was
armed with a deadly weapon during the burglary of Ziegler's garage . See id. (evidence
that perpetrator was armed immediately before and immediately after perpetrator's
22
presence in the home of victim was sufficient to establish that perpetrator was armed
while in the home).
Finally, since Appellant cannot be subjected to a capital sentence on retrial, we
need not address Appellant's final argument which contends the trial court erred when it
declined to give an instruction on self-defense as a mitigating circumstance during the
capital sentencing phase of his trial .
The judgment of the Jefferson Circuit Court is affirmed in part; and vacated and
remanded in part for resentencing on noncapital murder.
Cooper, Graves, Johnstone, and Roach, J .J ., concur.
Cooper, J., concurs in a separate opinion in which Johnstone, J ., joins .
Scott, J., dissents in a separate opinion in which Lambert, C ., and
Wintersheimer, J ., join .
ATTORNEY FOR APPELLANT
Frank Wm . Heft, Jr .
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
ATTORNEY FOR APPELLEE
Gregory D . Stumbo
Attorney General
Ian G . Sonego
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : SEPTEMBER 22, 2005
TO BE PUBLISHED
,Sixprexrtt C~oixrf of ~PnfuxhV
2003-SC-0552-MR
JASPER POLLINI
V
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
02-CR-1146 AND 02-CR-1632
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE COOPER
I concur fully in Justice Graves's well-reasoned majority opinion . I write
separately only to address Appellant's unpreserved claim that the self-protection
instruction erroneously included the statutory language that he was privileged to use
physical force against Byron Pruitt "if . . . he believed that Byron Pruitt was there about
to use unlawful physical force against him." Appellant complains that this instruction,
while conforming to the language of KRS 503.050(1), does not conform to the language
of the specimen self-protection instruction recommended in 1 William S . Cooper,
Kentucky Instructions to Juries (Criminal) § 11 .07 (4th ed . 1993), and Commonwealth v.
Halter , 41 S.W.3d 828, 846 (Ky. 2001) . KRS 503.050(1) provides :
The use of physical force by a defendant upon another person is justifiable
when the defendant believes that such force is necessary to protect
himself against the use or imminent use of unlawful physical force by the
other person.
(Emphasis added.) Generally, an instruction that follows the language of the statute is
not deemed erroneous. McGuire v. Commonwealth , 885 S .W .2d 931, 936 (Ky. 1994)
("instructions should be stated within the context of the statutory framework") .
Nevertheless, in their 1975 treatise on criminal instructions, Justice Palmore and
Professor Lawson explained the reason for omitting the word "unlawful" from the
specimen instruction as follows :
The requirement of unlawfulness is omitted because in the usual case
there will be no issue as to whether the victim of the defendant's assault
was acting pursuant to some legal privilege to inflict force upon his person .
The typical exception would occur in an arrest situation .
John S . Palmore & Robert G . Lawson, 1 Kentucky Instructions to Juries (Criminal)
§ 10 .01 cmt., at 341 (3rd ed . 1975) .
Palmore & Lawson cited Owens v. Commonwealth , 430 S .W .2d 325, 326-27 (Ky.
1968), as illustrative of "the pitfalls of using the word 'unlawful' in instructions ." Id. In
Owens, the defendant shot Marcum while allegedly defending himself against an
unprovoked assault by McGlammer . The defendant did not claim that he intended to
shoot McGlammer but mistakenly shot Marcum . See KRS 503.120(2) . Instead, he
claimed that the gun accidentally discharged during his scuffle with McGlammer. The
trial court instructed the jury that it should find the defendant not guilty if it believed that
the killing "was not the unintentional and careless discharge of a pistol by him in doing
an unlawful actr, such as scuffling with Carroll McGlammer) . . . ." Id. at 326-27
(emphasis partially added). Our predecessor court reversed the defendant's conviction
of voluntary manslaughter and remanded for a new trial, holding that if Appellant was
acting in self-defense when scuffling with McGlammer, such scuffling "was not an
unlawful act, although the court peremptorily instructed the jury that it was." Id. at 327 .
As Palmore & Lawson suggested, situations when a defendant would believe the
victim was about to lawfully use physical force against him are rare . Instances of lawful
use of physical force are defined in KRS Chapter 503, "General Principles of
Justification," and include force used by the victim in self-protection when the defendant
was the initial aggressor, KRS 503.060(3) ; force provoked by the defendant, KRS
503 .060(2) ; force used by a police officer or a person acting under official authority in
effecting a lawful arrest, KRS 503 .060(1), KRS 503 .090 ; force used to prevent suicide
or to prevent the commission of a crime involving or threatening serious physical injury
to person, substantial damage to or loss of property, or any other violent conduct, KRS
503.100; or force used by a parent, guardian, teacher, official at a correctional
institution, operator of a common carrier vehicle, doctor, or other therapist under
circumstances specified in KRS 503 .110 . When there is evidence of such an exception
to the privilege to act in self-protection, it is usually identified as such in a separate
instruction or by a proviso to the self-protection instruction, itself . See , etc .., Cooper,
supra, §§ 11 .11 - 11 .13, 11 .18B, & 11 .20 - 11 .27. For example, under the facts of this
case, if the trial court believed there was sufficient evidence for the jury to find that
Appellant believed Pruitt was about to use physical force against him for a lawful
purpose, the following specimen instruction would have been appropriate :
INSTRUCTION NO . _
SELF-PROTECTION
Even though the Defendant might otherwise be guilty of Murder
under Instruction No.
, if at the time the Defendant killed Byron Pruitt (if
he did so), he believed that Pruitt was then and there about to use
physical force upon him, he was privileged to use such physical force
against Pruitt as he believed to be necessary in order to protect himself
against it, but including the right to use deadly physical force in so doing
only if he believed it to be necessary to protect himself from death or
serious physical injury at the hands of Pruitt.
Provided, however, if you further believe beyond a reasonable
doubt that the Defendant believed Pruitt intended to use physical force
against him for the purpose of preventing him from committing a crime
involving or threatening substantial damage to or loss of property, then the
Defendant was not so privileged and is not entitled to the defense of selfprotection .
KRS 503 .100(1)(b) ; cf . Cooper, supra, § 11 .13.
Use of this or a similar specimen would have eliminated any speculation by the
jury as to what conduct by Pruitt would have been lawful and whether Appellant
believed that Pruitt's threatened use of physical force against him was for a lawful
purpose.
under the trial court's instruction, the jury may have concluded that
Appellant believed that Pruitt intended to arrest him for his previous crimes and that
such was a lawful purpose for the use of physical force - which, of course, would have
been incorrect since Pruitt was neither a police officer nor acting under official authority.
If, as is usually the case, there is no evidence that would support a finding by the jury
that the defendant believed that the victim's threatened use of physical force was lawful,
use of the specimen instruction recommended in Palmore & Lawson, supra , § 10.01, in
Cooper, supra, § 11 .07, and in Hager will avoid any such speculation .
However, if there is evidence from which the jury could find that the defendant
believed the victim's threatened use of physical force was lawful, the nature of the lawful
conduct should be identified . Assuming there was sufficient evidence from which the
jury could have found that Appellant believed Pruitt intended to use physical force
against him for the purpose of preventing him from committing a crime involving
substantial damage to or loss of property, the instruction given by the trial court was not
erroneous, just insufficiently specific, thus permitting unwarranted speculation by the
jury. Appellant did not object to the instruction on that ground and did not tender a
clarifying instruction, such as the specimen described, supra . RCr 9.54(2) .
Johnstone, J ., joins this concurring opinion .
RENDERED : SEPTEMBER 22, 2005
TO BE PUBLISHED
,$uyrrmr AT
V.~Jaurf of firufurhV
JASPER POLLINI
2003-SC-0552-MR
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
02-C R-1146 AND 02-C R-1632
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCOTT
CONCURRING IN PART AND DISSENTING IN PART
Although I concur with the majority on all other issues, I respectfully dissent from
the issue of whether Byron Pruitt was murdered during the commission of a FirstDegree Burglary .
The majority relies on Baker v. Commonwealth , 860 S.W.2d . 760 (Ky. 1993), in
support of its holding on the definition of "immediate flight," but distinguishes the facts of
the Baker case from the facts of this case to overturn the jury's verdict.
"It seems clear that the aggravating factors in the first-degree-burglary statute
were enacted to punish those who harm or threaten harm to those at the scene of a
burglary . The statute does not limit itself to consideration of acts which take place
within the curtilage of the dwelling being burglarized, but is written to protect occupants,
neighbors, and passers-by ." Baker at 761-762. 1 don't read any language in Baker, to
suggest that "immediate flight" has to be the cookie cutter burglary suggested by the
majority, i .e ., "in and out" of a building, without deviation .
Not only does Baker recognize the statute's intention to, protect people like Byron
Pruitt, it also recognizes that the question of whether a death occurs during an
immediate flight is one for the trier of fact. Furthermore, Baker relies on several like
cases from outside this jurisdiction, including People v. Ruiz , 136 A.D .2d 493, 523
N .Y.S.2d 814 (1988), for the presumption that a burglar can arm himself at anytime
during the immediate flight from the dwelling and that a defendant may be properly
convicted of First-Degree Burglary in that instance . Id . at 762. Interestingly, the Ruiz
case goes on to hold, in no uncertain terms, that "[t]he question of whether an act takes
place in "immediate flight" from a felony is generally left to the sound discretion of the
jury pursuant to an appropriate charge ." Id . at 495; citing People v. Gladman, 41 N .Y.2d
123, 390 N.Y.S . 912, 359 N.E .2d 420 (N.Y. 1976) (felon held to have been in
"immediate flight" some 15 minutes after and one-half mile away from the scene of a
robbery) ; see also People v. Sturgis , 112 A.D.2d 757, 492 N .Y .S.2d 257 (1985)
(suspect apprehended in New Jersey after burglary in New York; questions regarding
causation and whether the deaths occurred in the course of "immediate flight" from the
commission of the burglary were questions of fact for the jury) .
The Appellant argues that there was insufficient evidence to overcome a directed
verdict on the First-Degree Burglary charge and therefore its use as an aggravating
sentencing factor in the murder of Pruitt was error. In evaluating the evidence
presented at trial, in conjunction with the standard for a directed verdict in Benham, 816
S .W .2d 186, 187 (Ky. 1991) (under the evidence as a whole and assuming the evidence
for the Commonwealth is true, it would be clearly unreasonable for a jury to find guilt,
then directed verdict warranted), the trial court acted properly in overruling the
Appellant's motion for directed verdict and the jury was entitled to decide the issue.
The jury knew of the burglary at Zeigler's house, believed it was the Appellant
and knew Pruitt was killed soon thereafter, close to the scene of the burglary.
Thus in any event, facts were available from which the jury could reasonably believe
Pruitt was killed by the Appellant while in "immediate flight" - even under the standard
adopted by the majority opinion. What the majority opinion does however, is require the
jury to believe the Appellant's witnesses "that immediate flight" had ceased. However,
this itself is error since the jury is not required to believe the testimony of any particular
witness, see Davis v. Commonwealth, 109 S.W .2d 2, 3 (Ky. 1937) ; a point which the
majority now mandates . During their deliberation, the jury sought guidance from the
trial court on the issue of "immediate flight" and was properly instructed by the trial court
to evaluate the evidence presented and according to the tendered instructions, make a
determination as to whether Byron Pruitt was killed during the commission of a FirstDegree Burglary . The jury did just that and, absent some error not asserted in this
appeal, we should not disturb the jury's verdict.
Further, I do not find anything in a plain reading of KRS 511 .020 to suggest a
burglary is complete, or finished, if a perpetrator, intends to and does, return to the
scene of the burglary to finish the job, fifteen to twenty minutes later; so as to retrieve
his burglary tools - in order to complete the escape.
Just as the Appellant's return to 9000 Grand Point Court to retrieve the generator
he stole was the completion of his initial burglary, his return to 7613 Parkridge Trace to
get his tool box would have been the completion of his second burglary, and the
attempted return to complete this second burglary resulted in the death of an innocent
man .
Not having completed the burglary, and intent on hanging around to re-acquire
his burglary tools from the scene, he was still in "immediate flight." The fact that he had
to get another driver did not end the "immediate flight." Under facts such as these,
"immediate flight" should never be held to end until the perpetrator completes or gives
up on the burglary and finally attempts to flee the scene to apparent safety . That did
not happen here, as the death of Mr. Pruitt proves.
I would hold that the Appellant was still in the course of his "immediate flight"
from the Zeigler's home when he killed Pruitt. The Appellant failed to present any
rational argument sufficient to warrant disturbing the jury's verdict on the facts of this
case . Thus, I would affirm the Appellant's convictions and sentences on all counts.
Lambert, C.J ., and Wintersheimer, J., joins this opinion .
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