RAYMOND HARRIS V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : MAY 20, 2010
BE, PUB LI HED
,$UyrQMr
~Ourf
of
31
2008-SC-000363-MR
[OA'r[E~4&10
RAYMOND HARRIS
V.
fil
APPELLANT
ON APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
NO . 05-CR-001.39
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Raymond Harris appeals from a May 5, 2008 Judgment of the Bell
Circuit Court convicting him in accord with the jury's verdict of Murder, in
violation of KRS 507 .020; of complicity to second-degree arson, in violation of
KRS 513 .030 ; and of two counts of complicity to tampering with physical
evidence, in violation of KRS 524 . 100 . The trial court sentenced Harris to life
in prison without the possibility of parole for twenty-five years for the murder,
and to concurrent prison terms of ten, five, and five years for the arson and
tampering offenses respectively . The Commonwealth alleged that in March
2002, Dwayne Harris, Raymond Harris's nephew, hired Raymond to kill Paul
Browning . The two Harrises, together with a third man, Johnny Epperson,
were alleged to have taken Browning to a secluded area in Bell County, where
4a<-~
Raymond Harris shot and killed him . The three conspirators then attempted to
cover up the crime by placing Browning's body in Browning's pickup truck and
setting the truck on fire and by throwing the murder weapon into the
Cumberland River. Harris's principal claims on appeal concern jury selection,
during which, Harris maintains, the trial court erred by refusing to dismiss
several potential jurors allegedly biased in favor of the death penalty, by
dismissing three potential jurors who stated that they could not impose that
penalty, and by permitting a married couple to sit on the jury. He also
maintains that he was entitled to a directed verdict and that the trial court
erred by refusing to instruct the jury with respect to voluntary intoxication and
second-degree manslaughter . Finding no error, we affirm.
RELEVANT FACTS
The Commonwealth's case rested principally on the testimonies of
Dwayne Harris and Johnny Epperson . They presented a picture of drug
dealing and police corruption in Harlan County. According to the two men, for
some years prior to 2002 Dwayne Harris had sold large quantities of illegal
drugs from a sports memorabilia store he and his wife operated in the Fairview
section of Harlan. During that time, Epperson, a cocaine addict, performed
odd jobs for Harris in exchange for cocaine . Harris was also assisted by Roger
Hall, a deputy in the Harlan County Sheriff's office . In exchange for a share of
Harris's drug proceeds, Hall supplied him with inside information about federal
and state, as well as county, drug interdiction efforts and helped transport
drugs into Harlan County.
In 2002, the security of Dwayne Harris and Hall's operation was
threatened by the upcoming County Sheriff election . Paul Browning, who had
served as Sheriff of Harlan County in the early 1980s, was again seeking
election to that office . To protect their illegal trade in the event of Browning's
election, Dwayne Harris and Hall set out to acquire "leverage," as they called it,
over Browning . Dwayne Harris approached Browning and offered to help
finance his campaign in exchange for Browning's cooperation, an offer
Browning accepted . Lest he renege once in office, Dwayne Harris and Hall
secretly video taped Browning making incriminating statements and accepting
money from Harris, with the intent of using the tapes to blackmail Browning if
need be .
At one of his meetings with Dwayne Harris, Browning stated that were he
elected he intended to replace Hall with a deputy of his own choosing. At that
point Dwayne Harris and Hall concluded that notwithstanding their "leverage"
over him, Browning posed an unacceptable risk to their operation, and they
decided to have him killed . Eventually they offered to pay Dwayne's uncle,
Raymond Harris, $1,000 .00 for the killing. Raymond Harris was unemployed
at the time, his disability benefits had been cut off, and he had a drinking
problem. He agreed to kill Browning .
Dwayne Harris convinced Browning to accompany him to Middlesboro on
March 22, 2002, ostensibly for dinner and to discuss Browning's campaign .
Epperson and Raymond Harris also made the trip. The four men left Harlan in
the late afternoon, the two Harrises riding in Dwayne's pickup truck, and
Epperson riding with Browning in Browning's truck . The plan, according to
Dwayne Harris and Epperson, was to kill Browning outside of Middlesboro, to
bury the body there, and to burn Browning's pickup truck at another location .
Instead, as the men were riding through Bell County, Dwayne Harris pulled off
Highway 119 onto a secluded stretch of Highway 987 in order to urinate .
Browning pulled in behind, and Epperson joined Dwayne in front of Dwayne's
truck where he too urinated . As they were so engaged, they heard a bang and
in short order discovered that Raymond had shot and killed Browning .
Raymond and Epperson placed Browning's body back in his truck, and,
with Epperson driving Browning's truck, the three men headed back toward
Harlan. Before leaving Bell County, however, Dwayne again detoured from
Highway 119 and led the way to a mining road off of Highway 2012 . There,
according to Epperson, Raymond threatened to shoot him if he did not douse
Browning's truck and the body with gasoline and set them on fire, which he
did . Before returning to Harlan, Dwayne drove to the Dayhoit bridge, from
which Epperson threw the murder weapon into the river. Shortly after the men
arrived back in Harlan, Dwayne gave Raymond the promised $1,000.00 . It was
not until 2004, when Dwayne and Epperson faced federal prosecution for drug
trafficking, that they gave statements implicating Raymond in Browning's
murder .
In addition to Dwayne Harris's and Epperson's testimony, the
Commonwealth's proof included evidence showing that within a week of the
murder Raymond moved from Harlan to Lexington, where he stayed for some
months before returning to Harlan; the testimony of two witnesses, Edna
Tackett and Richard Harris, who claimed that Raymond had admitted, indeed
boasted of, the killing; and Tackett's further testimony that on the night of the
killing, in its immediate aftermath, she had seen Raymond with a large amount
of cash in his hand and with his skin blackened from smoke.
Raymond maintained and through cross-examination attempted to show
that Dwayne and Epperson were not credible and were framing him for their
own crimes . He also presented testimony to the effect that in March 2002 he
was an active alcoholic and had drunk heavily on the day of Browning's
murder.
As noted, the jury rejected Raymond's defense and found him guilty of
murder and the other charged offenses. It also found as an aggravating
circumstance that Raymond committed the murder for profit. KRS
532 .025(2)(a)(4) . It then recommended a sentence of life without the possibility
of parole for the aggravated murder, and concurrent sentences of ten, five and
five years, respectively, for the complicity to arson, and the two complicity to
tampering with evidence offenses . The trial court ultimately sentenced Harris
as noted above .
On appeal, Harris's' first, and main, contentions are that the trial court
abused its discretion during jury selection (A) by refusing to strike six jurors
who either could not consider the full range of authorized penalties or could
Appellant Raymond Harris is hereafter referred to as "Harris ." Others with that
surname will be referred to by their full names .
not give the necessary consideration to mitigating circumstances ; (B) by
striking three jurors who expressed an inability to impose the death penalty;
and (C) by permitting a married couple to serve on the jury. We are convinced
that there was no abuse of discretion and that Harris's other alleged errors
provide no grounds for reversal .
ANALYSIS
I . The Trial Court Did Not Abuse Its Discretion During Jury Selection.
A. The Trial Court Did Not Abuse Its Discretion By Refusing To Strike
Certain Jurors Who Expressed Pro-Death-Penalty Attitudes.
Harris was charged with capital murder, and the Commonwealth sought
the death penalty against him. Accordingly, the trial court, during individual
voir dire, explained to each potential juror that if the jury found the defendant
guilty of that crime it would be asked to decide upon one of the five authorized
penalties, a range of penalties extending from a minimum of twenty years in
prison all the way to death. The court then asked if the juror would be capable
of considering that full range of punishments. When the court finished with its
questioning, defense counsel was permitted to inquire more specifically into the
potential juror's attitude toward the death penalty and was also permitted to
ask each potential juror to consider a hypothetical murder, a sort of generic
capital homicide : an intentional murder of a blameless victim, a murder
unjustified in any way by fear or passion, and a murder committed in
conjunction with some aggravating circumstance, such as a robbery or a rape.
Counsel was permitted to ask each potential juror whether he or she could
consider the full range of penalties for such a murder. Counsel was also
permitted to ask the potential jurors whether they would take mitigating
circumstances into consideration, and in particular whether they would regard
certain factors, such as the defendant's age, lack of criminal history or
domination by another person, as mitigating .
In light of their responses to these inquires, Harris moved to have struck
for cause potential jurors 23, 26, 29, 31, 53, and 86. The trial court denied
those motions, whereupon Harris used peremptory challenges against five of
them and otherwise exhausted his peremptory challenges . Although none of
the five peremptorily struck jurors at issue sat on Harris's jury, if any of them
should have been struck for cause, Harris would be entitled to relief because in
that event he was denied the full use of his peremptory challenges . Shane v.
Commonwealth, 243 S.W .3d 336 (Ky. 2007) .2
Harris did not use a peremptory strike against juror 29, and she sat on
the jury. Generally, a biased juror taints the proceeding and, if properly
objected to, the presence of such a juror on the jury will entitle the defendant
to relief. United States v. Martinez-Salazar, 528 U.S . 304 (2000) . Here,
however, the bias alleged against juror 29 is bias in favor of capital
punishment . The United States Supreme Court has indicated that the only
relief mandated for the improper inclusion or exclusion of potential jurors on
2
We note that in Gabbard v. Commonwealth, 297 S .W.3d 844 (Ky. 2009), we refined
the holding of Shane to require, in addition to the exhaustion of peremptory
challenges, a showing that the party identified a juror or jurors who would have
been stricken but for the error and further, that a juror the party desired to strike
actually sat on the jury . Because none of the challenged jurors should have been
struck for cause, we need not decide whether Gabbard, a 2009 case, applies to
Harris's 2008 trial .
the basis of their attitudes toward capital punishment is relief from a capital
sentence . Witherspoon v. Illinois, 391 U.S . 510, 523 n . 21 (1968) (Witherspoon
violation does not "affect the validity of any sentence other than one of death .") .
Because Harris was not sentenced to death, he is not entitled to relief even if
juror 29 were biased in favor of that punishment. As discussed below,
moreover, she was not biased as alleged.
Seeking Shane relief, however, Harris maintains that the trial court's
refusal to strike these jurors infringed his right under our rules to the full use
of his peremptory challenges . We consider, therefore, whether any of them
should have been so struck . We review the trial court's rulings on motions to
strike for abuse of discretion, Soto v. Commonwealth, 139 S .W .3d 827 (Ky.
2004), and are convinced that no abuse of discretion occurred.
As Harris correctly notes, the United States Supreme Court has held that
under the Eighth and Fourteenth Amendments to the United States
Constitution a capital defendant is entitled to an individualized sentencing by a
jury allowed to consider and to give effect to any mitigating evidence that the
defendant can produce . Penny v. Johnson, 532 U .S . 782 (2001) ; Eddings v.
Oklahoma, 455 U .S. 104 (1982) . In furtherance of that right, the Court has
also held that such a defendant is entitled to have removed for cause any
potentialjuror so biased in favor of the death penalty that his ability to
consider lesser penalties is substantially impaired . Ross v. Oklahoma, 487 U .S .
81 (1988) . A juror who, having found the defendant guilty of a capital crime,
would automatically vote for that penalty regardless of any mitigating evidence
is thus disqualified . Such a juror, the Court explained,
will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such
a juror has already formed an opinion on the merits,
the presence or absence of either aggravating or
mitigating circumstances is entirely irrelevant to such
a juror . Therefore, based on the requirement of
impartiality embodied in the Due Process Clause of the
Fourteenth Amendment, a capital defendant may
challenge for cause any prospective juror who
maintains such views.
Morgan v. Illinois, 504 U.S. 719 (1992) . A potential juror should be
disqualified, therefore, who would automatically impose the death penalty
without regard to mitigating circumstances or whose ability to consider
penalties other than capital punishment is substantially impaired .
Accordingly, we have many times held that "[a] capital defendant is entitled to a
jury that can fairly consider the entire range of punishments." Fields v.
Commonwealth, 274 S .W .3d 375, 393 (Ky. 2008) (citation omitted) .
When asked initially by the trial court whether they could consider the
full range of authorized penalties, the jurors Harris now objects to all stated
that they could . In response to Harris's questions, however, these jurors
indicated that they favored the death penalty for certain crimes. Juror 26, for
example, stated that he had a law enforcement background and regarded the
intentional killing of a police officer as a particularly serious crime for which
the death penalty would be appropriate . This juror even remarked that for
certain crimes, if the court instructed him to he would consider all penalties
including "stoning or burning at the stake." Juror 23 believed the death
penalty was justified on the basis of "an eye for an eye ." Jurors 53 and 86
both thought the death penalty sometimes appropriate to prevent murderers
from returning to the community, and juror 86 regarded the intentional killing
of a child as the sort of crime for which the death penalty might be appropriate .
Harris maintains that these jurors' pro-death-penalty attitudes
disqualified them, but "[a] trial court is not required to excuse a juror for cause
merely because the juror favors severe penalties, so long as he or she can
consider the full range of penalties ." Soto v. Commonwealth, 139 S.W .3d at
849 . Nor, again, is a juror disqualified merely for espousing the "eye for an
eye" belief, if the juror otherwise gives assurance that he or she can consider
the penalties other than death . Id. at 849 . Although these jurors favored
severe penalties for the crimes they regarded as particularly serious, they all
indicated that not every murder deserved the death penalty. Notwithstanding
his "burning at the stake" remark, juror 86 emphasized that he believed in the
presumption of innocence, and, as did the rest of these jurors, stated
numerous times that he could and would consider the full range of penalties
and all the circumstances of the case. The trial court did not abuse its
discretion, therefore, by deeming these jurors qualified.
This conclusion is not undermined by the fact that in response to
Harris's dire hypothetical-an aggravated, cold-blooded, and otherwise
unexplained murder-some of the jurors stated that they probably would not,
for such a crime, consider one of the lesser penalties . It is telling that these
10
jurors, when asked if they could consider the full range of penalties for
counsel's hypothetical murder, all stated that they were not sure, that it would
depend on the circumstances, that they needed more information . Only when
counsel pushed them to assume an aggravated crime with no explanation, did
juror 31, for example, doubt that he would impose a sentence less than life
without parole. A juror is not disqualified, however, merely because he or she
"find[s] it difficult to conceive of minimum punishment when the facts as given
suggest only the most severe punishment . . . . The test is not whether a juror
agrees with the law when it is presented in the most extreme manner. The test
is whether, after having heard all of the evidence, the prospective juror can
conform his views to the requirements of the law and render a fair and
impartial verdict." Stopher v. Commonwealth, 57 S .W .3d 787, 797 (Ky . 2001) ;
Walker v. Commonwealth, 288 S .W.3d 729 (Ky. 2009) . Notwithstanding some
of these jurors' reluctance to apply a lesser punishment to counsel's severe
hypothetical crime, each of them indicated both the ability and the willingness
to consider all of the evidence and all of the authorized penalties and to render
an impartial. verdict.
Finally, none of these jurors was disqualified because of an unwillingness
to consider mitigating evidence . As noted above, in cases such as Penry,
Eddings, and Morgan, the United States Supreme Court has held that a capital
defendant is entitled to present mitigating evidence to the jury, that the jury
must be allowed to give effect to that evidence if it is so inclined, and that a
juror who would give no effect to any mitigating evidence but would always vote
to impose the death penalty for a capital crime is disqualified . There is no
entitlement, however, to a jury or to individual jurors committed at the outset
to view particular mitigating factors as having a mitigating effect . Walker,
supra (lack of significant criminal history) ; Winstead v. Commonwealth, 283
S .W .3d 678 (Ky. 2009) (poverty and difficult family life) ; Fields, supra
(intoxication) ; Sherroan v. Commonwealth, 142 S .W.3d 7 (Ky. 2004) (troubled
background) ; Stopher, supra (voluntary intoxication) . Jurors 26, 29, and 86
were not disqualified, therefore, merely because they stated that particular
factors, such as lack of a significant criminal history or domination by another
person (juror 26) ; low IQ, an abusive childhood, or the lack of a significant
criminal record (juror 29) ; youth, an abusive childhood, or intoxication (juror
86) ; were facts not likely to have much bearing on their penalty decisions .
Each of these jurors indicated that there were circumstances in which even an
aggravated murder would warrant a penalty other than death, that he or she
would consider the evidence offered in mitigation, and that his or her penalty
decision would be based not only on the crime but on its circumstances as
well. Notwithstanding their rejection of particular mitigating factors, therefore,
these jurors were not shown to be so thoroughly unreceptive to mitigation
evidence or so substantially impaired in their ability to consider penalties other
than death as to be disqualified .
B . The Trial Court Did Not Abuse Its Discretion By Excusing Three
Jurors Who Expressed An Inability To Consider The Death Penalty.
Harris next contends that the trial court abused its discretion under RCr
9 .38 when it dismissed three potential jurors who indicated during individual
voir dire that their reservations about the death penalty would not in all cases
prevent them from considering that punishment, but who then during general
voir dire stated that upon further reflection they had become convinced that
they could not impose the death penalty under any circumstances . Harris
correctly notes that the rule mandates individual voir dire for questions
regarding capital punishment and requires the trial judge to permit the parties'
attorneys to conduct the examination on that issue . Here, the parties had been
accorded a full opportunity during individual voir dire to canvass the jurors'
attitudes toward the death penalty, but that issue arose again during general
voir dire when, in response to a question posed by the Commonwealth
regarding the jurors' ability to "judge another person," a juror volunteered that
while she would not have'a problem deciding on another person's guilt, she
was deeply troubled by the death penalty and had decided since her
examination during individual voir dire that she simply could not impose that
punishment. Two other jurors then said that they, too, had had second
thoughts about the death penalty and did not think that they could impose it.
The trial court thereupon granted the prosecution's motion to dismiss these
three jurors and denied Harris's request for additional individual voir dire .
Harris acknowledges that a potential juror "who is substantially impaired in his
or her ability to impose the death penalty under the state-law framework can
be excused for cause ." Utteeht v. Brown, 551 U .S. 1, 9 (2007) (citation omitted) .
He contends nevertheless that under RCr 9 .38 the trial court was obliged to
13
give him an additional opportunity to question each of these jurors
individually .
It may well be that when the question of capital punishment arose
unexpectedly during general voir dire, the better practice would have been for
the trial court to canvass the affected jurors individually and to permit counsel
to question them . Harris did not object, however, until after the jurors had
been questioned as a group and the three jurors had made their feelings
known . In these circumstances, we cannot say that the trial court abused its
discretion by dismissing the jurors whose ability to consider the death penalty
was clearly substantially impaired or by determining that additional
questioning would not undo the impairment the jurors had displayed . As the
Commonwealth correctly points out, moreover, and as discussed above,
because Harris was not sentenced to death, Witherspoon, 391 U.S. at 523 n . 21
(Witherspoon violation does not "affect the validity of any sentence other than
one of death.") and because the court's alleged error did not compromise his
use of peremptory strikes, Shane, supra, he could not have been prejudiced by
an error that bore only upon a capital sentence. The error, therefore, if any,
was harmless and does not entitle Harris to relief.
C. The Trial Court Did Not Abuse Its Discretion By Permitting A
Married Couple To Serve On The Jury.
Finally with respect to jury selection, Harris contends that the trial court
abused its discretion by permitting a married couple to sit on the jury.
Following individual voir dire and prior to the commencement of general voir
dire, Harris noted that the remaining panel included two married couples,
14
jurors 28 and 29, and another couple . Arguing that these jurors would not be
independent but would unduly influence each other and also that they would
find it difficult not to discuss the case as it was proceeding, Harris moved to
have one member of each couple randomly selected and dismissed . The trial
court denied the motion at that point in time, ruling instead that the couples
could be questioned and if their answers confirmed Harris's concerns one
member of the couple could then be removed. During general voir dire, Harris
referred to these couples and asked them whether they would not find it
difficult to refrain from discussing the case as it was going on. Both couples
gave assurance, however, that they would be able to abide by the admonition
not to discuss the case . Harris did not ask these couples whether they would
be apt to influence each other, he did not renew his objection at the end of voir
dire, and he did not remove either juror 28 or 29 peremptorily . Both served on
the jury. Harris now contends that married jurors are presumptively not
independent and that his right to an impartial jury was thus violated by the
presence of a married couple on his jury .
Harris is correct, of course, that under the Sixth and Fourteenth
Amendments to the United States Constitution and Section 11 of the Kentucky
Constitution, a criminal defendant is entitled to an impartial jury. To help
protect that right, RCr 9 .36 mandates that "[w]hen there is reasonable ground
to believe that a prospective juror cannot render a fair and impartial verdict on
the evidence, that juror shall be excused as not qualified ." In making this
determination, the trial court is to consider the prospective juror's voir dire
15
responses as well as his or her demeanor during the course of voir dire, and is
to keep in mind that generally it is the totally of those circumstances and not
the response to any single question that reveals impartiality or the lack of it.
"Impartiality," we reiterated recently in Shane, supra, "is not a technical
question but a state of mind." 243 S.W.3d at 338 . Indeed, we have held that
notwithstanding a prospective juror's responses during voir dire, whatever his
or her protestations of lack of bias, the juror's close relationship, "be it familial,
financial or situational, with any of the parties, counsel, victims or witnesses,"
is sufficient to require the court "to sustain a challenge for cause and excuse
the juror ." Marseh v. Commonwealth, 743 S .W .2d 830, 833 (Ky. 1988) (citing
Ward v. Commonwealth, 695 S .W .2d 404 (Ky . 1985), internal quotation marks
omitted) ; Montgomery v. Commonwealth, 819 S.W .2d 713 (Ky. 1991) . This is
so, we explained, because however sincere and well meaning such prospective
jurors may be, such close personal relationships are apt "subconsciously [to]
affect their decision in the case." Marsch, 743 S .W .2d at 834 . See also, Ratliff
v. Commonwealth, 194 S.W .3d 258 (Ky. 2006) (collecting cases in which we
have held that bias should have been presumed) .
Bias, however, presumptive or otherwise, refers generally to a juror's
favoring or disfavoring one side of the case or the other, a risk not posed by
relationships between jurors . For that reason, the few courts to have
addressed in published opinions the issue of married jurors have held that
such jurors are not presumptively disqualified and that their independence
may be adequately assured through voir dire . See for example, State v. Richie,
16
960 P.2d 1227 (Haw. 1998) ; Russell v. State, 560 P.2d 1003 (Okla. Crim. App .
1977) ; State v. Wilkins, 56 A.2d 473 (Vt. 1948) ; Savoie v. McCall's Boat Rentals,
Inc., 491 So .2d 94 (La. App. 1986) . We agree that no presumption of undue
influence or lack of independence arises from the fact of marriage alone. While
a trial court would be within its discretion to avoid even the possibility of
impropriety posed by married jurors by dismissing one or the other, the trial
court did not abuse its discretion here by postponing its decision on Harris's
motion to dismiss until after the married jurors had been questioned . Harris's
failure to renew his motion after voir dire in effect waived the issue, but in any
event, since the jurors' responses included nothing that would have compelled
a dismissal, the trial court cannot be said to have abused its discretion by
permitting jurors 28 and 29 both to serve on Harris's jury.
II. Harris Was Not Entitled To A Voluntary Intoxication Instruction.
Harris next contends that the trial court erred when it denied his request
for jury instructions on the defense of voluntary intoxication and the
concomitant lesser offense of second-degree manslaughter . The trial court
denied the request because in its judgment the evidence that the attack had
been planned and the fact that Browning had been shot in the back of the
head, suggesting a deliberate assassination, did not permit a finding of
wantonness . We review a trial court's decision not to give an instruction under
the abuse of discretion standard . Crain v. Commonwealth, 257 S .W .3d 924
(Ky. 2008) .
As Harris correctly notes, a trial court is required to instruct the jury on
17
affirmative defenses and lesser-included offenses if the evidence would permit a
juror reasonably to conclude that the defense exists or that the defendant was
not guilty of the charged offense but was guilty of the lesser one. Fredline v.
Commonwealth, 241 S .W .3d 793 (Ky. 2007) ; Fields v. Commonwealth, 219
S.W.3d 742 (Ky. 2007) . It is equally well established that such an instruction
is to be rejected if the evidence does not warrant it . Payne v. Commonwealth,
656 S.W .2d 719 (Ky. 1983) . Under KRS 501 .080(1), voluntary intoxication is a
defense to a criminal charge only if the intoxication "[n]egatives the existence of
an element of the offense ." Intent is the element of murder that voluntary
intoxication can conceivably negate, and if it does the offense is reduced from
murder to second-degree manslaughter . Caudill v. Commonwealth, 120 S .W.3d
635 (Ky . 2003) . Harris maintains that he was thus entitled to a second-degree
manslaughter instruction, because the jury could have believed that he was too
intoxicated to form the intent to kill Paul Browning . We have interpreted KRS
501 .080(1), however, "to mean that the [voluntary intoxication] defense is
`justified only where there is evidence reasonably sufficient to prove that the
defendant was so drunk that he did not know what he was doing."' Fredline,
241 S .W.3d at 797 (quoting from Rogers v. Commonwealth, 86 S .W.3d 29, 44
(Ky. 2002)) . The trial court did not abuse its discretion by rejecting that
defense here.
Harris presented evidence to the effect that in March 2002 he was an
active alcoholic, and three witnesses testified that on the day of Browning's
murder they observed Harris in a drunken state . Two of those witnesses
18
testified that shortly after noon they saw Harris walking along the railroad.
tracks as he often did when drunk, talking to himself, waving his arms, an
apparently oblivious to his surroundings. The third witness, Harris's son-inlaw, testified that he visited Harris at his apartment between 3:30 and 4 :00
that afternoon in hopes of borrowing some money . He found Harris drinking
beer and intoxicated to the extent that his speech was slurred. Harris was
apparently not so drunk that he did not know what he was doing, however, for
he understood his son-in-law's errand well enough to loan him ten dollars . A
fourth witness testified that she encountered Harris later that night, after the
murder . She too described Harris as intoxicated, but testified that Harris was
in possession of a large amount of cash, that his skin appeared blackened as if
from smoke, and that he said to her, "See baby, don't tell me I don't care to kill
somebody."
Otherwise, the only evidence of Harris's condition at the time of the
offense came from Dwayne Harris and Epperson, who were not asked whether
Harris was intoxicated. They testified that, in accord with the plan to murder
Browning, Harris had joined the group that afternoon armed with a gun ; that
he shot Browning while the group was in a secluded place ; that he had both
the presence of mind and the physical ability to help put Browning's body back
into Browning's truck; that when the group stopped at the second secluded
place he ordered Epperson to set the truck on fire ; and that soon after
returning to Harlan he disposed of his clothes by throwing them in the river
and demanded the $1,000 .00 that had been promised him for the killing .
19
To be sure, the jury was not obliged to believe Dwayne Harris's and
Epperson's testimonies, but even construed favorably to Harris, the evidence
showed only that, although he had drunk heavily that afternoon, at least an
hour-and-a-half before the offense he understood his son-in-law's request to
borrow money, he was in sufficient control of himself and was aware enough of
his circumstances to join Dwayne Harris and Epperson's excursion with
Browning, and after returning to Harlan he not only remembered the killing
but boasted of it. This evidence does not suffice to permit a finding that at the
time of the offense Harris was so intoxicated that he did not know what he was
doing. Cf. Stanford v. Commonwealth, 793 S .W .2d 112 (Ky. 1990) (smoking
cocaine and drinking beer a half-an-hour to an hour-and-a-half before the
offense did not justify intoxication instruction where evidence showed that
defendant was still capable of driving.) ; Nichols v. Commonwealth, 142 S .W.3d
683 (Ky. 2004) (instruction required where shortly before the offense the
defendant drank heavily and was observed behaving "wildly" and "out of
control.") . The trial court did not abuse its discretion, therefore, when it
rejected Harris's request for intoxication and second-degree manslaughter
instructions.
III. Harris Was Not Entitled To A Directed Verdict.
Harris's final contention, that he was entitled to a directed verdict of
acquittal can be quickly rejected on the record before us. We may overturn the
trial court's denial of a motion for directed verdict only if, considering the
evidence as a whole and drawing all reasonable inferences in favor of the
20
Commonwealth, "it would be clearly unreasonable for the jury to find guilt ."
Commonwealth v. Benham, 816 S.W .2d 186, 187 (Ky. 1991) . Harris concedes
that the testimonies of Dwayne Harris and Epperson, if believed, were sufficient
to support his conviction, but he maintains that accomplice testimony is so
inherently suspect that Harris and Epperson could not reasonably be believed .
He relies on a former rule of criminal procedure, old RCr 9 .62, pursuant to
which accomplice testimony was deemed suspect and would not support a
conviction unless corroborated .
The short answer to Harris's argument is that RCr 9 .62 was abolished
nearly thirty years ago . Murphy v. Commonwealth, 652 S.W.2d 69 (Ky. 1983) .
Under current rules, the credibility of witnesses is left to the jury to assess,
Davis v. Commonwealth, 147 S .W.3d 709 (Ky . 2004), and uncorroborated
accomplice testimony can support a conviction, Hodge v. Commonwealth, 17
S .W.3d 824 (Ky. 2000) . Even under the old rule, moreover, accomplice
testimony could support a conviction if corroborated by any evidence
independently tending to connect the defendant to the crime. Deskins v.
Commonwealth, 512 S.W.2d 520 (Ky. 1974) . Here, the testimonies by Dana
Tackett and Robert Harris to the effect that Raymond Harris had a large
amount of cash a few hours after the shooting, that he then appeared
blackened by smoke, and that he admitted his role in the murder, as well as
the evidence that Harris left Harlan a few days after the shooting and remained
in Lexington while the case was being investigated was sufficient corroboration
to permit reliance on the testimony of Dwayne Harris and Epperson . The trial
court did not err by denying Harris's motions for a directed verdict.
CONCLUSION
In sum, Harris has not identified any ground for relief. The trial court
did not abuse its discretion during jury selection by refusing to dismiss jurors
who, although in favor of the death penalty for particularly egregious crimes,
could nevertheless consider mitigating evidence and the full range of
authorized penalties. Additionally, the court did not abuse its discretion by
dismissing three jurors who stated categorically that they could not impose the
death penalty, or by deeming both a husband and wife qualified to serve on the
jury where neither's independence had been shown to be lacking. Nor did the
trial court abuse its discretion by finding the evidence of Harris's intoxication
insufficient to justify an instruction on that defense or on second-degree
manslaughter. Finally, the court did not err by considering accomplice
testimony in denying Harris's motions for directed verdict. Accordingly, we
affirm the May S, 2008 Judgment of the Bell Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.