ROBERT E. SHIRLEY V. COMMONWEALTH OF KENTUCKY
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2005-SC-0503-MR
ROBERT E . SHIRLEY
V
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
2004-CR-0247
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Robert E. Shirley, was convicted in the Warren Circuit Court of wanton
murder. He was sentenced to twenty years' imprisonment and appeals to this Court as
a matter of right. Finding no error, we affirm.
Appellant's conviction stems from the January 4, 2004 shooting death of Alfred
Victor Michael . Appellant's wife, Jeanetta, had met Michael in June 2003, while
shopping at a Wal-Mart store where he was employed . After discovering that Michael
was nearly destitute, Appellant and his wife began providing him assistance . The
couple helped Michael get an apartment and enroll in trade school. Michael began
attending Appellant's church and coming to Appellant's house every evening for dinner .
While Appellant stated that he considered Michael an "adopted" son, there was
evidence presented at trial that Appellant had, in fact, become very jealous of the
relationship between Jeanetta and Michael . On the evening of January 4, 2004,
Appellant arrived home after having visited family in a neighboring county. Appellant
stated that as he walked past the kitchen window on his way into the house, he
observed Jeanetta and Michael embracing . Appellant thereafter retrieved a handgun
from the garage . As he started through the kitchen door, Appellant exclaimed, "What is
going on here?" Simultaneously, he fell, discharging the weapon and shooting Michael
in the head . Appellant thereafter called 911 . When police arrived, Jeanetta told them
that "the door flew open and I seen my husband, he slid like, the concrete down there,
as he came up, and the gun just went off." She further said, "But like I say, I don't think
he intended, I think he meant to scare . . . because I did see him go down . He slipped
and kind of went down ." Michael died the following day.
Following a trial in April 2005, a jury found Appellant guilty of wanton murder and
recommended a sentence of twenty years' imprisonment . Judgment was entered
accordingly . Additional facts are set forth as necessary .
I.
Appellant first argues that the trial court erred in failing to instruct the jury on selfprotection and the protection of others . Appellant contends that he introduced sufficient
evidence from which a jury could have concluded that he shot Michael in self-defense
or in defense of his wife . We disagree .
A defendant is entitled to have the jury instructed on the merits of any lawful
defense which he has . Sanborn v. Commonwealth , 754 S .W .2d 534 (Ky. 1988).
However, the entitlement to an affirmative instruction is dependent upon the
introduction of some evidence justifying a reasonable inference of the existence of a
defense. Brown v. Commonwealth , 555 S .W .2d 252, 257 (Ky. 1977) ; Jewell v.
Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977), overruled on other grounds by,
Payne v. Commonwealth , 623 S .W .2d 867 (Ky. 1981) .
During the 911 tape played for the jury, Appellant said that he only intended to
point the gun at Michael, but he slipped on the concrete leading into the kitchen and the
gun accidentally discharged . Later, at the police station, Appellant gave a taped
statement to Detective Kevin Pickett, wherein he claimed that he had observed his wife
and Michael embracing, and that Michael was thrusting his pelvic area into Jeanetta .
He admitted that Jeanetta was not resisting . Nonetheless, he stated that he armed
himself for protection because he knew that Michael had a propensity for violence .
However, he unequivocally stated that he never intended to shoot the gun and that he
did not actually pull the trigger. Although Appellant maintained that the shooting was an
accident, he did not tell Detective Pickett that he slipped and fell .
Appellant testified at trial and told yet a different version of events. Appellant
stated that he retrieved his gun because he believed Michael was attacking Jeanetta .
Appellant testified that could not recall whether he tripped as he entered the kitchen,
but that he remembered going down. He explained that as he fell down, he must have
grabbed the trigger causing the gun to discharge . Appellant further told the jury that *he
did not intend to shoot Michael, but just show him the gun . While Appellant did testify
that Michael turned and began walking toward him when Appellant opened the kitchen
door, there was no evidence that Michael had any type of weapon or was the initial
aggressor.
In Grimes v. McAnulty, 957 S .W .2d 223, 227 (Ky. 1997), cert. denied , 525 U .S.
824, 119 S. Ct. 70, 142 L. Ed . 2d 55 (1998), this Court held that self-defense and
accidental killing are mutually exclusive.
By its very nature, self-defense relates to an intentional or
knowing use of force and not an accidental shooting . "In
Kentucky we have long recognized as fundamental that when
the accused has 'admitted the shooting' and then 'attempted to
justify it on the grounds of self protection . . . there is no
evidence that his actions were anything other than intentional ."'
McGinnis v. Commonwealth , Ky., 875 S .W.2d 518, 521 (1994)
(quoting Shannon v. Commonwealth , Ky., 767 S .W.2d 548,
548-549 (1988)). Pursuant to self-defense the defendant
admits, but seeks to justify, the intentional commission of the
act, whereas the essence of an accident defense is the
defendant's contention that he did not intentionally commit the
act the state alleges constitutes a crime .
Appellant affirmatively asserted the defense of accident, and the jury was, in
fact, given the instruction on "Accidental Killing," tendered by the defense. Thus, if he
maintained that the shooting was an accident, he could not also claim he intentionally
acted in self-defense.
Appellant's reliance on Hilbert v. Commonwealth , 162 S .W.3d 921 (Ky. 2005), is
misplaced . The defendant in Hilbert claimed that he intentionally killed the victims in
self-defense . However, the trial court refused to instruct the jury on self-defense,
reasoning that the self-defense statute, KRS 503.050, was based on the subjective
belief of the defendant and the defendant was the only one who could testify . Thus, the
issue on appeal was whether or not the defendant's testimony was required in order to
submit instructions on self-defense to the jury.
In holding that a defendant's testimony is not a necessary prerequisite to a selfdefense instruction, this Court noted that although the defendant did not testify on his
own behalf, evidence showed that he had been in an altercation with the victims and
had suffered a welt on his head, that he told police that the victims kept coming at him
and he did not know what to do, and that he had been severely beaten during a
mugging several years earlier . We opined :
Admittedly, the evidence supporting Appellant's belief in the
need for the use of force was not strong, nor free from
contradiction . However, such evidence need only raise the issue
for an instruction on self-defense is necessary once sufficient
evidence has been introduced at trial which could justify a
reasonable doubt concerning the defendant's guilt.
Id. at 925 . Here, however, Appellant produced no evidence, circumstantial or
otherwise, to support a finding that he acted in self-defense .
Appellant's argument that he acted in protection of his wife is equally dispelled
by his claim that the shooting was an accident . We note that Appellant did not tender
an instruction on the protection of another. RCr 9 .54(2) clearly states that "[n]o party
may assign as error the giving or the failure to give an instruction unless the party's
position as been fairly and adequately presented to the trial judge by an offered
instruction or by motion, or unless the party makes objection before the court instructs
the jury . . . ." Nevertheless, the trial court raised the discussion "for appellate
purposes" and noted that Appellant was not entitled to such an instruction because he
failed to produce any evidence that Jeanetta was being attacked .
II .
Appellant next argues that the trial court erred by separately instructing the jury
on wanton murder and intentional murder. Appellant claims that dividing the
instructions gave the Commonwealth two bites at the apple .
During a conference on the instructions, defense counsel raised an objection to
the trial court's use of separate instructions for intentional murder and wanton murder .
The trial court explained that it chose to separately instruct the jury on the two offenses
because each requires a different mental state. The trial court noted that, in its opinion,
the separate instructions ensured that all twelve members of the jury found Appellant
culpable under the same mental state.
Both murder instructions comported with the form instructions found in 1 Cooper
Kentucky Instructions to Juries , §§ 3 .21 and 3.23, pp. 96-101 (4th ed . Anderson 1999) .
Moreover, the wanton murder instruction was not worded as a lesser-included offense
of the instruction on intentional murder, i .e . , "if you do not find the defendant guilty [of
intentional murder] under Instruction No . . . ... Cf. McGinnis v. Commonwealth , 875
S .W .2d 518 (Ky. 1994), overruled in Elliott v . Commonwealth , 976 S .W .2d 416 (Ky.
1998) . Thus, while the trial court could have given one instruction containing both
theories of murder, we cannot conclude that Appellant was prejudiced by the separation
of offenses . See Commonwealth v. Hager, 41 S .W.3d 828, 849-50 (Ky. 2001) (Keller,
J ., concurring) .
Ill .
Appellant also contends that the trial court erred by failing to sufficiently define
the distinction between the wanton conduct necessary for a wanton murder conviction
and the wanton conduct necessary for a second-degree manslaughter conviction .
Appellant argues that the only distinction between the two offenses, the element of
"circumstances manifesting an extreme indifference to human life," is "so vague and
illusive as to escape the average intelligent juror." Appellant points to the fact that a
juror asked for clarification between wanton murder and second-degree manslaughter
as evidence that the distinction is vague .
Appellant acknowledges that he is aware of this Court's decision in Brown v.
Commonwealth , 975 S.W .2d 922 (Ky. 1998), wherein we addressed this issue in terms
of a constitutional challenge to the wanton murder statute, KRS 507 .020(1)(b) . We
held therein :
Wanton murder is distinguished from second-degree (involuntary)
manslaughter, KRS 507 .040, which also punishes "wantonly caus[ing] the
death of another person," by the additional element described in the
phrase "under circumstances manifesting extreme indifference to human
life." To punish wanton conduct as murder, it must be conduct as culpable
as intentional murder . "[T]he culpable mental state defined in KRS
507.020 as 'wantonness,' . . . without more, will suffice for a conviction of
manslaughter in the second degree but not for murder because, to qualify
as 'murder,' 'a capital offense,' it must be accompanied by further
'circumstances manifesting extreme indifference to human life."' McGinnis
v. Commonwealth , Ky., 875 S .W.2d 518, 520 (1994) (citing Commentary
to KRS 507 .020) .
Appellant is correct in his observation that extreme indifference to
human life is not a phrase capable of precise definition, and the drafter of
the Model Penal Code and the Kentucky Penal code admitted as much.
There is a kind of [wanton] homicide that cannot fairly be
distinguished . . . from homicides committed [intentionally] .
[Wantonness] . . . presupposes an awareness of the creation
of substantial homicidal risk, a risk too great to be deemed
justifiable by any valid purpose that the actor's conduct
serves . Since risk, however, is a matter of degree and the
motives for risk creation may be infinite in variation, some
formula is needed to identify the case where [wantonness]
should be assimilated to [intention]. The conception that the
draft employs is that of extreme indifference to the value of
human life. The significance of [intention] is that, cases of
provocation apart, it demonstrates precisely such indifference .
Whether recklessness is so extreme that it demonstrates
similar indifference is not a question that, in our view, can be
further clarified ; it must be left directly to the trier of the facts .
If recklessness exists but is not so extreme, the homicide is
manslaughter . . . .
KRS 507.020, Commentary; Model Penal Code, § 201 .2, Comment
2.
Similarly, this Court has on several occasions held that whether
wanton conduct demonstrates extreme indifference to human life is a
question to be decided by the trier of fact. Walden v. Commonwealth ,
Ky., 805 S.W .2d 102 (1991), overruled on other grounds, Commonwealth
v. Burge , Ky., 947 S.W .2d 805 (1997) ; Nichols v. Commonwealth , Ky.,
657 S .W .2d 932 (1983). . . .
As stated in a recent case, "a conviction of wanton
murder is reserved exclusively for offenders who manifest
virtually no concern for the value of human life ." rJohnson v.
Commonwealth, Ky., 885 S .W.2d 951, 952 (1994)] .
We are of the opinion that the phrase "extreme indifference to
human life" are words of common understanding, and further that the
Commentary to the Penal Code sufficiently sets forth the type of conduct
that will sustain a wanton murder conviction . As such, the General
Assembly was not required to include a precise definition of the phrase
within KRS 507.020(1)(b) . It is the duty of the trier of fact to determine,
under the given circumstances, whether a defendant's conduct rises to
the culpable mental state equivalent to intentional murder.
Brown, 975 S .W .2d at 923-25 .
For the same rationale espoused in Brown , we conclude that the trial
court did not err in failing to further clarify the distinction between wanton murder
and second-degree manslaughter .
IV.
Finally, Appellant argues that the bifurcated trial process deprived him of his
constitutional right to a fair trial . Appellant contends that the statutorily vague offenses
coupled with a process wherein the jury only learns of the penalty range after a finding
of guilt demonstrates the unconstitutionality of these proceedings .
Appellant did not assert a constitutional argument in the trial court and cites no
authority to support one herein . In Commonwealth v. Reneer, 734 S .W .2d 794 (Ky.
1987), this Court specifically declined to hold KRS 532 .055, which requires the
determination of guilt to be bifurcated from the assessment of penalty, unconstitutional .
We adhere to that precedent and decline Appellant's invitation to revisit the issue .
The judgment and sentence of the Warren Circuit Court are affirmed .
Lambert, C .J . ; Graves, Johnstone, Roach, Scott, and Wintersheimer, JJ.,
concur. Cooper, J., dissents for the reasons set forth in his dissenting opinion in
Grimes v. McAnulty, 957 S .W .2d 227, 229-33 (Ky. 1997), and because he believes
factual issues should be resolved by juries, not judges.
COUNSEL FOR APPELLANT :
Wesley V. Milliken
Milliken Law Firm
First Floor, Milliken Building
1039 College Street
P . O. Box 1640
Bowling Green, KY 42102-1640
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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