JAMES QUISENBERRY V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M . SHAKE, JUDGE
NO . 07-CR-002791-001
COMMONWEALTH OF KENTUCKY
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M . SHAKE, JUDGE
NO . 07-CR-002791-002
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON
Kenneth Williams and James Quisenberry appeal as of right from
Judgments of the Jefferson Circuit Court sentencing them, respectively, to life
and to forty-five years in prison for their roles in the robbery and murder of
Earon Harper and the shooting of Harper's two-year-old daughter, Erica . The
two men were tried jointly. At the conclusion of the two-week trial, the jury
found both of them guilty of robbery and, as to Earon Harper's death, found
Williams guilty of murder and Quisenberry guilty of second-degree
manslaughter . The jury further found Williams guilty of assaulting and
attempting to murder Erica, Quisenberry guilty of facilitating those offenses
and both defendants guilty of tampering with physical evidence . Finally, the
jury found Quisenberry guilty of being a second-degree persistent felon, but
declined to enhance his sentence recommendation on that ground . Because of
the joint trial and the common underlying facts, we have consolidated the two
appeals for consideration in a single opinion . Williams contends that the trial
court erred (1) by refusing to order separate trials ; (2) by failing to instruct the
jury concerning the proper use of statements the defendants gave to police; and
(3) by refusing to suppress Williams's own statement, allegedly obtained in
violation of Miranda. Quisenberry contends that the trial court erred (1) by
denying his motion for a directed verdict of acquittal on all charges and (2) by
imposing cumulative punishments for the facilitation of assault and facilitation
of attempted murder offenses. Finding no reversible error, we affirm in both
Construing the evidence in the light most favorable to the
Commonwealth, on the afternoon of May 18, 2006, Earon Harper's landlord
stopped by Harper's rental home, on Wilson Avenue in south Louisville, found
an open, empty purse lying on the walk leading to her door, and found the door
ajar . When Harper did not respond to his knock, he entered the home and
discovered Harper's body lying on the floor between the front room and a
bedroom . In the bedroom, he found two-year-old Erica lying on the bed, badly
wounded and moaning in pain. The landlord called 911, and the first officers .
to respond immediately transported the child to the hospital.
The medical examiner testified that both victims had been shot at least
two times . Harper was shot once in the right thigh and once from just a few
inches away, near the left ear. The examiner could not determine the order of
the shots, but he testified that the shot to the head would have been instantly
incapacitating. Erica was also shot once in the thigh, a piercing shot that
entered and exited the thigh, and shot again in the left forehead . As with
Harper, the examiner could not determine the order of the shots . The shot to
the head was from within two feet, and the bullet appeared to have passed
downward through the child's head, out her jaw, into her chest, and out her
right flank. The chest-to-flank injury, however, could have been the result of a
third shot. Somehow Erica survived those injuries, but she was left blind in
one eye .
Louisville Metro Police Department (LMPD) investigators recovered
bullets and shell casings from the scene, and ballistics testing determined that
all of them had been fired from a 9mm firearm, with the bullets from the same
gun and the casings from the same gun. Investigators also found cigarette
butts and soda cans in the bedroom . DNA analysis determined that a DNA
sample recovered from one of the cigarettes matched a sample taken from
Quisenberry, and a sample recovered from one of the soda cans matched a
sample taken from Williams . The investigators found empty prescription
bottles in Harper's name strewn about the bedroom floor and, in the bedroom
closet, they found a small safe which had been opened, with its main
compartment empty .
Phone records showed that shortly after midnight on May 18, 2006,
hours before Harper's body was discovered, Harper received two brief calls from
a number registered to Quisenberry. Those records led investigators to
interview Quisenberry on June 6, 2006 . At that interview Quisenberry
admitted that the phone number was his,. that he and Harper had known each
other for several years, and that their relationship included the exchange of
prescription medications . He did not tell the investigators that he had been in
Harper's house later that morning of May 18th.
Through testimony by a pharmacist and excerpts from the surveillance
video at the Walgreens pharmacy where he worked, the Commonwealth
established that during the evening of May 17, 2006 two persons resembling
Quisenberry and Williams came to the pharmacy's prescription window .
Although the men were unsuccessful in their attempt to obtain prescription
medicine, the jury did not hear this, only that the men were at the pharmacy
window . Soon thereafter the pharmacist discovered that the owner's manual,
registration, and insurance certificate had been stolen from his car. A few days
later, in response to a citizen's report, a police investigator found those items
belonging to the pharmacist in a catch basin not far from Harper's home along
with Harper's driver's license, various bank and shopping cards issued in
Harper's name, and empty prescription bottles also bearing Harper's name .
Key to the Commonwealth's case was the testimony of Rashon Turner, a
long-time acquaintance of both Quisenberry and Williams. Facing unrelated
murder charges of his own, in July 2007 Turner agreed to testify against his
former friends in exchange for a favorable plea bargain. Turner told
investigators, and later testified at trial, that early one morning "a couple of
weeks after the Derby" in 2006, he was on the porch of Williams's mother's
house visiting with Williams's brother, when he received a phone call from
Williams, who claimed to have just "hit a lick," i.e., committed a robbery . A
short time later Quisenberry dropped Williams off at the house, and Williams
told Turner that he and Quisenberry had gone to the home of a woman
Quisenberry knew on Wilson Avenue to get some pills . According to Turner,
Williams, in the course of taking the woman's purse away from her grasp, had
shot her two times and then had shot another person . Williams showed Turner
some pills and a black, semi-automatic, 9mm handgun. He also stated that he
had discarded some papers and other items while he and Quisenberry were
still in south Louisville. Turner believed that Williams later sold the gun.
Armed with this information, on August 29, 2007, LMPD investigators
interviewed Williams and reinterviewed Quisenberry. Both initially denied
having been at Harper's house the morning Harper was killed, but eventually,
convinced that the police had proof of their presence, each admitted having
been there; having seen a black, 9mm gun; and having heard gunshots .
Quisenberry acknowledged having been present when Harper was shot in the
leg, and he recalled at least three or four shots . Williams recalled that Harper
was on the ground when she was shot, and he also remembered hearing Erica
crying from the bed. Their statements, paraphrased by the testifying police
detective so as to exclude any reference to each other, were admitted at trial .
The detective was also permitted to testify on cross-examination that both
defendants denied having shot either Harper or her daughter, Erica.
Neither defendant testified at trial, but Williams attempted to discredit
Turner's testimony by calling his, Williams's, younger brother, who denied
having had the alleged post-Derby conversation with Turner on his mother's
porch . Otherwise, each defendant's defense was essentially designed to
establish that he was not the one who fired the shots . The jury instructions
reflected those defenses through complicity and facilitation charges. As noted,
the jury attributed the major role to Williams, finding him guilty of murdering
Harper and of assaulting and attempting to murder Erica while finding
Quisenberry guilty of second-degree manslaughter and of facilitating the crimes
against the child.
Commonwealth v. Kenneth Williams -- 2009-SC-000418-MR
Williams's first contention on appeal is that he was entitled to be tried
separately from Quisenberry and that the joint trial was rendered unfair by the
use of their paraphrased statements to police. The detective's paraphrase of
Quisenberry's statement, Williams maintains, directly implicates him, Williams,
in the crimes, and because Quisenberry did not testify and so could not be
cross-examined, the use of the incriminating statement deprived him of his
right under the Fifth Amendment to the United States Constitution to confront
the witnesses against him. Williams also maintains that the trial court erred
by not sua sponte instructing the jury to limit its consideration of
Quisenberry's statement to its determination of Quisenberry's guilt or
I. The Introduction At Trial Of Portions of Both Defendants' Pretrial
Statements To Police Did Not Result In Prejudice Such That The Trials
Should Have Been Severed.
A. The Defendants' Statements Were Adequately Redacted.
As we recently reiterated in Rodgers v. Commonwealth, 285 S.W .3d 740
Rule of Criminal Procedure (RCr) 6 .20 permits the
joinder for trial of two or more defendants if "they are
alleged to have participated in the same act or
transaction or in the same series of acts or
transactions constituting an offense or offenses."
Joint trials are a mainstay of our system, as they give
the jury the best perspective on all the evidence and
thus increase the likelihood of proper verdicts and
avoid the possibility of inconsistent ones . Conflicting
versions of what happened, we have thus noted, "is a
reason for rather than against a joint trial." . . . RCr
9 .16, on the other hand, requires that trials be severed
"if it appears that a defendant or the Commonwealth is
or will be prejudiced" by the joinder.
Rodgers, 285 S .W.3d at 745 (quoting from Shepherd v. Commonwealth, 251
S.W.3d 309, 313 (Ky. 2008)) . We review the trial court's denial of a motion to
sever for abuse of discretion, Shepherd, and the burden is on the appellant to
show that the denial was in fact unfairly prejudicial . Parker v. Commonwealth,
291 S .W .3d 647 (Ky . 2009) ; Bratcher v. Commonwealth, 151 S .W.3d 332 (Ky.
As Williams correctly notes, in a joint trial, the Confrontation Clause of
the United States Constitution precludes "the pretrial confession of one
[defendant from being] admitted against the other unless the confessing
defendant takes the stand." Richardson v. Marsh, 481 U.S . 200, 206 (1987) ;
see also Crawford v. Washington, 541 U .S. 36 (2004) (holding more generally
that testimonial hearsay is inadmissible if the declarant is not available to
testify and the defendant has not previously had the opportunity to crossexamine the declarant) . The pretrial confession may not even be admitted
against the confessor, moreover, if on its face it implicates another defendant
being jointly tried with the confessor. Bruton v. United States, 391 U.S . 123
(1968) ; Gray v. Maryland, 523 U .S . 185 (1998). The Supreme Court has held,
however, that the Confrontation Clause does not rule out either joint trials or
the use therein of pretrial confessions against the confessors themselves. To
be admissible though, the codefendant's. confession must be redacted so as to
remove express and obvious inferential references to the defendant: "the
Confrontation Clause is not violated by the admission of a nontestifying
codefendant's confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant's name, but any
reference to his or her existence ." Richardson, 481 U .S. at 211 .
Citing Bruton and Crawford, Williams moved for a separate trial on the
ground that the introduction of Quisenberry's August 29th statement would
violate his, Williams's, right to confrontation. The Commonwealth proposed,
pursuant to Richardson, to redact from Quisenberry's statement any reference
to Williams and from Williams's statement any reference to Quisenberry, and
the trial court ruled that with these redactions there was no need for the trials
to be severed. As the trial court noted, we have upheld the use of a
codefendant's redacted statement for this purpose. Shepherd, 251 S.W .3d at
Williams first contends that the trial court abused its discretion because
the written redaction of Quisenberry's statement which the Commonwealth
proffered in response to Williams's severance motion did not eliminate what,
Williams maintains, were obvious references to him . Significantly, however,
that written redacted statement was not read or otherwise introduced at trial .
Whatever its inadequacies, therefore, the written statement did not prejudice
Williams and so does not provide a ground for relief. Our focus is, as it must
be, on what the jury actually heard .
At trial, the Commonwealth asked the detective to paraphrase what the
two men had told him. In doing so, the detective scrupulously avoided any
mention either defendant made of the other, limiting his testimony to what
each defendant said about his own actions, about the two victims, and about
his having seen a gun and heard gunshots . As noted, on cross-examination
each defendant was allowed to ask whether he had denied shooting anyone,
and in both cases the detective answered that he had. Williams contends that
this paraphrased version of Quisenberry's statement violated his confrontation
right because notwithstanding the fact that it does not refer to him expressly it
does so by obvious implication. If Quisenberry saw a gun and heard gunshots,
but was not himself the shooter, then clearly, Williams maintains, he is
accusing Williams of filling that role. We disagree .
As Williams notes, in Gray v. Maryland, the Supreme Court held that a
codefendant's confession redacted only to. the extent of replacing each instance
of the defendant's name with a blank or with the word "deleted" was
inadmissible under Bruton because in each instance the jury was virtually
certain to understand that the deletion referred to the defendant. Even
redacted, therefore, the confession remained inculpatory of the defendant on its
face and thus was so similar to the unredacted confession in Bruton as to
warrant the same result. In Richardson v. Marsh, however, the Court upheld
the admission of a codefendant's confession notwithstanding the fact that in
conjunction with other evidence introduced at trial the confession became
inculpatory of the defendant. The confession had been redacted so as to
eliminate any direct or obvious reference to the defendant. Noting the vital
roles that joint trials and confessions play in our criminal justice system, the
Richardson Court explained that a codefendant's confession such as this, one
incriminating of the defendant not on its face but only by inference when
linked with other evidence, did not pose the same risk the facially incriminating
confession in Bruton did of confounding an instruction that the jury is to
consider the confession only against the confessor and not against the
defendant. Accordingly, as noted above, the Court held "that the Confrontation
Clause is not violated by the admission of a nontestifying codefendant's
confession with a proper limiting instruction when, as here, the confession is
redacted to eliminate not only the defendant's name, but any reference to his or
her existence ." Richardson, 481 U.S . at 211 .
While this case falls somewhere between Gray and Richardson, we believe
that it is more like the latter than the former and so agree with the trial court
that the joint trial and the admission of a paraphrased version of Quisenberry's
redacted statement to police did not violate Williams's right to confrontation.
Unlike the confessions held inadmissible in Bruton and Gray, Quisenberry's
statement did not expressly or in any way directly refer to Williams . It was
clearly focused, rather, on Quisenberry's own role in the events at issue. To be
sure, Quisenberry's admission that he heard shots and his denial of having
fired them imply that someone else did, but the inference that Williams was
"the someone else" is not suggested by the redacted paraphrase of
Quisenberry's statement. It instead arises only by inference upon
consideration of the other evidence of Williams's involvement (e.g., Turner's
testimony and the DNA evidence) admitted at trial. That sort of inferential
linkage is not improper under the Confrontation Clause, but may, as the Court
held in Richardson, be addressed in a limiting instruction . The joint trial did
not unduly prejudice Williams, therefore, and the trial court did not abuse its
discretion by denying his motion to sever.
B . The Lack .Of An Instruction Limiting The Jury's Use Of
Quisenberry's Statement Did Not Render Williams's Trial
This brings us to Williams's final contention with respect to
Quisenberry's statement, which is that even if the statement was adequately
redacted it should not have been admitted in the absence of an instruction or
admonition limiting the jury's consideration of it to Quisenberry . Neither
defendant requested a limiting instruction in this case, but Williams maintains
that the trial court erred by failing to give one sua sponte . He acknowledges
that in Barth v. Commonwealth, 80 S .W.3d 390 (Ky. 2001), we held that a
limiting instruction in this context is required only upon request, but he urges
us to reconsider that holding. However, even if we were to revisit Barth and
conclude that the trial court erred by failing to give a limiting instruction sua
sponte, the error was not preserved and Williams cannot establish that it was
palpable. KRE 105(a) (providing that the failure to give an unrequested limiting
instruction is reviewable only for palpable error), RCr 10 .26 (providing that
unpreserved errors may be reviewed under the palpable error standard) .
In Barth, Justice Cooper analyzed Bruton and Richardson, noting that
neither case addressed whether the limiting instruction could be waived by the
defendant's failure to request it. Drawing on Kentucky' and federal precedent
Barth cites Hall v. Commonwealth, 817 S.W.2d 228, 229 (Ky. 1991) overruled on
other grounds by Commonwealth v. Ramsey, 920 S.W.2d 526 (Ky. 1996), a case in
which this Court held that the trial judge did not err by not admonishing the jury
sua sponte that the defendant's acknowledgment that he was a convicted felon
could only be considered for any affect on his credibility. "Defense counsel should
be free to make as little of the admission by defendant of a prior felony conviction as
as well as KRE 105 in writing for the majority, he opined that waiver would
occur without a specific request by the defendant . Some might question the
observation in Barth that "[p]resumably, a confession properly redacted . . .
would not incriminate the codefendant at all ." 80 S .W.3d at 397 . There is
certainly merit to the argument that even a scrupulously redacted statement,
at some level, is detrimental to a codefendant to the extent the confessor denies
responsibility for criminal conduct because a jury may be inclined to shift that
responsibility to the other person(s) on trial. This potential strengthens the
argument for requiring a limiting instruction whenever the trial court admits a
statement by any of the defendants on trial . Additionally, as Justice
Johnstone noted in his concurring opinion in Barth, 80 S .W .3d at 404-405, the
admissibility of a codefendant's statement as sanctioned in Richardson can,
under the most straightforward reading of that case, be deemed to depend
upon both proper redaction and a limiting instruction, with the absence of
either creating a Confrontation Clause violation. So there is merit to Williams's
contention that the .limiting instruction should be given by the trial judge sua
sponte, but even were we to abandon Barth, that would not provide Williams
with the relief he seeks because, having not requested the instruction as this
Court has repeatedly held a defendant must,2 he is relegated to having the
issue reviewed for palpable error, a high hurdle that he cannot clear.
possible . As a matter of trial strategy, it may be decided that the admonition would
only serve to emphasize the conviction . . ." 817 S.W .2d at 229.
In Caudill v. Commonwealth, 120 S .W .3d 635, 659 (Ky. 2003) and most recently in
Rodgers, 285 S.W.3d at 746, this Court adhered to Barth and reiterated that in
To justify relief_under the palpable error standard, an error must be
obvious and serious and it also must have resulted in manifest injustice . Ernst
v. Commonwealth, 160 S .W.3d 744, 758 - (Ky . 2005) "A court reviewing for
palpable error must do so in light of the entire record; the inquiry is heavily
dependent upon the facts of each case ." Id. citing United States v. Young, 470
U .S . l, 16 (1985) . Given the compelling circumstantial evidence linking
Williams to these crimes, Williams's own admission of involvement, and
Rashon Turner's testimony of Williams's confession to him, we are convinced
that the admission of Quisenberry's redacted and paraphrased statement
without a limiting instruction did not render the judgment against Williams
manifestly unjust. Cf. United States v. Vega Molina, 407 F.3d 511, 520-21
Cir. 2005) (applying plain error standard to the failure to give an unrequested
limiting instruction and finding no such error as to one defendant where there
was a "mass of other evidence" of that defendant's guilt aside from the
codefendant's statement; finding plain error as to a third defendant against
whom the totality of the evidence was "noticeably thinner" and where the
statement was misused by the prosecutor against that particular defendant in
closing argument .)
those circumstances a limiting instruction is required upon request. Despite this
clear direction to defense counsel, once again no request was made to the trial
court and, as the Commonwealth aptly notes, this decision may well have been a
conscious strategic decision by trial counsel to not draw undue attention to the
codefendant's vague statement . Williams had two seasoned trial attorneys, each
with significant capital litigation experience, and undoubtedly aware of Barth and
Caudill, even if Rodgers had yet to be decided.
Given the recurrence of this issue, we reiterate that when a properly
redacted statement of a codefendant is to be presented to the jury, a limiting
instruction should always be given upon the defendant's request. Moreover,
while not required, there is certainly nothing inappropriate about the trial
judge informing counsel of his or her intent to provide such admonition sua
sponte absent an objection from the defendant or defendants for whose
presumed benefit it would be given . 3 As the Commonwealth and several courts
have noted, sometimes there are tactical benefits to foregoing an admonition
from the bench that may draw undue attention to fleeting or perhaps
ineffective testimony which otherwise would have little practical effect on the
defendant's case . See, e.g., Caudill, 120 S.W .2d at 659 ; United States v. Clark,
989 F.2d 1490, 1500 (71 Cir. 1993) . Trial counsel knows best whether a
limiting instruction will be beneficial, given what the jury has heard or will hear
in the course of the trial. Thus, Kentucky precedent leaves that important
judgment call squarely within the trial counsel's sound discretion by
recognizing the concept of waiver. If a limiting instruction is advisable, trial
counsel is now well-informed of the requirement to ask for one.
II . The Police Officers Did Not Violate Williams's Miranda Rights .
Williams also contends that the trial court erred when it denied his
motion to suppress his August 29, 2007 statement. Suppression was required,
This practice would avoid any question about whether the lack of a request is
defense trial strategy . Declining a proffered limiting instruction would preclude
palpable error review, the typical response when no instruction is given and the
record is silent.
he asserted, because the investigating officers obtained the statement in
violation of his rights under Miranda v. Arizona, 384 U .S. 436 (1966) .
Following a suppression hearing at which both the transcript and video
recording of Williams's interrogation were introduced along with the testimony
of the detective who conducted most of the interview, the trial court ruled that
Williams had been properly Mirandized and that his statement was the result
of a knowing and voluntary waiver of his Miranda rights . Williams contends
that the trial court erred by disregarding instances during the process, both
before he was Mirandized and after, when he invoked his rights and when,
accordingly, the questioning should have ceased. Although the trial court did
not address the alleged invocations specifically, that court appears to have
concluded that Williams's references to a lawyer and his apparent willingness
at one point to be taken to jail did not amount to the unambiguous assertion of
his rights that Miranda has been held to require . With that apparent
conclusion, we agree .
In Miranda, of course, the United States Supreme Court "determined that
the Fifth and Fourteenth Amendments' prohibition against compelled selfincrimination required that custodial interrogation be preceded by advice to the
putative defendant that he has the right to remain silent and also the right to
the presence of an attorney." Edwards v . Arizona, 451 U .S. 477, 481-82
(1981) . In furtherance of those rights, the Court held in Edwards "that law
enforcement officers must immediately cease questioning a suspect who has
clearly asserted his right to have counsel present during custodial
interrogation." Davis v. United States, 512 U .S. 452, 454 (1994) . Thus, "if a
suspect requests counsel at any time during the interview, he is not subject to
further questioning until a lawyer has been made available or the suspect
himself reinitiates conversation :" .Id. at 458 (citing Edwards) . In subsequent
cases, however, the Court has explained that the Edwards prohibition on
further questioning applies only to unambiguous requests for counsel (Davis)
and unambiguous assertions of the right to remain silent (Berghuis v.
, 130 S . Ct. 2250, 2260, 176 L. Ed .2d 1098, (2010)) . A
suspect "must articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney." Davis, 512 U.S . at 459 . If, on the
other hand, "a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning." Id. at 459 . The same
standards apply to assertions of the right to remain silent . Berghuis, 130 S . Ct .
at 2259, 2260.
Williams and Quisenberry were both summoned to LMPD headquarters
during the afternoon of August 29, 2007. Williams's questioning took place in
a room equipped for that purpose with audio and visual recorders. The
'recorded interview commenced at about 4 :30 and lasted slightly more than an
hour and a half. Detective Arnold, the lead detective on the case, did most of
the questioning, but he was sometimes joined by Detective Brown . At the
outset of the recorded interview, Detective Arnold introduces himself to
Williams, explains briefly that he is investigating the murder of Earon Hughes,
and then informs Williams of his Miranda rights . He tells Williams of his rights
to remain silent and to have an attorney, .tells him that he may invoke those
rights at any time during the questioning, and tells him that his volunteered
statements can and will be used against him. Williams concedes that these
warnings satisfy the Miranda requirements . Having received them, Williams
proceeded to waive his rights and to submit to questioning. The trial court
found, and Williams does not seriously dispute, that Williams's waiver was
both knowing and voluntary.
Before Williams signed the waiver form and agreed to be questioned,
however, the following exchange took place :
Det. Arnold: If you understand it [your rights] just
sign right there, sign your name. I'm gonna sign here
as a witness. We're just talking. I know we uh, I know
we are, I'm just. And you can stop at any time.
Williams : This, this is what I'm saying brother, you
just told me I had to (inaudible) . . . So, you just ready
to ask me some qu . . . But, you told me I was ready to
go to jail . This is what you told me .
Det. Arnold : I told you you were in custody, that's
Williams- I'm talking about you told me I was ready to
go down for a murder. That is what you told me .
Det. Arnold : That's not what I told you.
Williams : That's exactly what you just t . . . that's,
that's the only reason I said lawyer . When you said,
when you asked me for my attorney.
Det . Arnold : No.
Williams: You said, you was like, "You ready, you
ready to be charged with murder?"
Det. Arnold: No, I did not, uh-uh. I, there's, when I
walked in you asked me what you're here for, and I
said a murder investigation .
Williams: And, you said . .
Det. Arnold : No .
Williams : And, okay, and then what'd you say? You
said, "You're not going nowhere, you going . . ."
Det . Arnold: I s . . . and you said, "Am I gonna go to
jail?" I said, "you're not leaving here." That's correct.
Sgt. Brown: Dude, you're in custody right now, on HIP
[home incarceration program] .
Williams: I, I know that.
Det. Arnold: That's what I'm saying.
Sgt. Brown: You're, you're in our, we're responsible for
you right now.
Williams: Aw, I didn't know ; I didn't understand .
Sgt. Brown : Yes, and we're responsible for you.
Williams : Okay.
Det. Arnold: It's nothing personal here .
Williams: I know .
Det. Arnold : Kenneth, I just, you had, when I walked
in you said, "Yeah, what am I doing here?" That's
when I said, "I'm a homicide detective. I'm
investigating a murder." And, you said well what am I
here for? I said, well it's in reference to this murder
case . And you said, "Am I in cus . . .?" Or you said,
"Am I going to jail?" I said, "You're not going anywhere
right now." That's correct.
Sgt. Brown: Because you're on HIP. So, do you want
to talk to us about this?
Williams : I'm a . . . What y'all wanna know?
Sgt. Brown: All right. Well, go ahead and sign that.
Det . Arnold: And, if you want to stop at any time, it
says that you can stop at any time. You can talk to
me as long as you want, or as short as you want.
Williams : Okay, all right. So, I'm signing; I'm signing
this to talk to y'all, to give y'all permission to talk
without my lawyer, right?
Det. Arnold : Correct, right. Because I can't talk to
you until you sign this .
Williams : Okay. So where do I sign?
Det. Arnold: You sign right here . And I'm gonna put
my name as a witness . And, you do understand this,
Williams: Yeah, I understand it and all .
Williams maintains that this passage shows that before the recorded interview
began he invoked his right to counsel and that under Edwards, accordingly, he
should not have been questioned at all. At most, however, the passage
indicates that before being questioned Williams "said 'lawyer,' not that he
unambiguously requested an attorney. At the suppression hearing, Detective
Arnold testified that in their brief exchange prior to questioning Williams did
not ask for counsel. Given that testimony and the recording which is, at best,
ambiguous, the trial court did not err by'ruling that Williams's interrogation
was not precluded by a pre-questioning request for an attorney.
Williams also asserts that his reference at the beginning of his interview
to his pre-interview "lawyer" remark was itself a request for counsel, but as
discussed above, Edwards requires more than the mere mention of the word
r." An officer could reasonably have understood Williams's remarks prior
to signing the Miranda waiver not as a request for counsel, but as an attempt
to determine whether the police had decided to charge him with murder and
put him in jail. Because Williams's remarks did not constitute an
unambiguous request for counsel, the Edwards prohibition on further
questioning did not arise . Nor does Missouri v. Seibert, 542 U .S . 600 (2004),
afford Williams any relief, since clearly this is not a case in which the officers
postponed giving the Miranda warnings until after the suspect had made
incriminating admissions . The Miranda warnings came before any
incriminating remarks .
Williams's other assertions that the officers violated Miranda are likewise
unavailing. As noted above, Williams initially denied having been with
Quisenberry the night of the murder or having been at Harper's residence .
Gradually, however, the LMPD officers persuaded him that they had compelling
evidence that he and Quisenberry had been with Harper, and at that point,
apparently fearful of what Quisenberry may have told the officers, Williams
grew frustrated, and the following exchange took place :
Williams: This is, I'm tellin' you, it is a game. `Cause
see what happened, a m-f got to y'all and told y'all
his story . So, therefore, he got to y'all first.
Det. Arnold : No .
Williams : Man, I won't . .
Det. Arnold : I'll let you listen to his story if you want; I
don't care. You can hear his whole story if that's what
you wanna do . You just gotta tell me yours. [pause]
Man, you ain't a bad dude . You made some bad
choices, but you ain't a bad dude . Jamo [Quisenberry]
ain't a bad guy either. He done some stupid s
he's right in the middle of this just like you are .
Williams: Man, tell me sir. Tall just need to go on
and take me to jail.
Det. Arnold : I'll take you down to jail, that's fine . I
just . . .
Williams: I don't give a f
, dog, f
Williams contends these last remarks were, in effect, an invocation of his right
to remain silent, that they amounted to a demand that the questioning cease
and that he be taken to jail. Even if that might be what Williams meant to say,
however, those remarks were far from unambiguous. They could just as well
have been a concession of his predicament, a "You've got me ; you might as well
take me to jail." At the suppression hearing, Detective Arnold testified that he
understood Williams's remarks in this latter sense, not as a request to cease
the exchange and be taken to jail, but as marking Williams's realization that
his blanket denials were not working and. his situation was serious. As a
reasonable officer could certainly have interpreted Williams's "take me to jail"
remarks in that way and not as an assertion of rights, Miranda and Edwards
did not preclude further questioning.
A few minutes later, after Williams had admitted that he and
Quisenberry had gone to Harper's house to obtain drugs and that the deal had
gone bad and turned violent, Detective Arnold asked if Williams had ever seen
the murder weapon, a 9 mm handgun, before . Williams said that he had .
When asked who had possessed it, however, he became concerned about being
thought a "snitch"
Det. Arnold : Where have you seen it [the gun] before?
Williams: Where you think I seen it before?
Det. Arnold : I don't know, man . Don't play with me. I
just wanna know who had it ; just say the name .
Williams : [inaudible] . . . snitched .
Det. Arnold: If you're worried about snitching and
you're going to the death penalty, going to the freakin'
death row, then, then be proud of yourself. But I
mean, snitching . . .
Williams: Man, I'm freezing in here .
Det. Arnold: Snitching has nothing to do with nothing
right now. There's 5000 snitches over in that jail.
Williams : I already know.
Det. Arnold : I know you do, but . . . I know you do .
Williams: This is all I'm saying, can I tell my lawyer
the real story and he tell y'all?
Det. Arnold: Sure . He can hear the story.
Williams : Can he tell y'all?
Det. Arnold: You can do whatever you want to do .
You have every right to do what you wanna do . That's
why we went over the Rights Waiver Form when you
first walked in here. But I would like for you to tell
me, so I can go to the prosecutor and tell them right
now, or tomorrow morning.
Williams : And I'm still convicted, regardless.
Det. Arnold: I don't know about you, whether you'll be
convicted or not. I know right now that if I didn't have
a case, I wouldn't be bringing you in here arresting
Det. Arnold : Then, after a year, I would arrest
somebody and press charges . I have to end the case .
Williams: I understand what you're saying.
Det. Arnold: You know, I mean that's why. And
there's physical evidence, there's forensic evidence,
there's statements, and there's other people that have
been interviewed, and so on and so forth. It's a
situation where, you know, if you want to admit to the
best of a bad situation, then get back to what you were
talking about as far as him going in there to do
whatever he was gonna do [inaudible] And tell me
what that's all about.
Williams then made further incriminating statements .
Williams contends that his question about dealing with the police
through counsel was a request to do so, and so should have brought his
questioning to an end. Again, however, what Williams said was ambiguous.
Was he asking for counsel or was he merely asking if counsel was an option?
Was his interest in counsel for the sake of counsel's advice or merely in hopes
that counsel could screen him from being perceived as a snitch? An officer in
these circumstances would reasonably have entertained doubts about
Williams's meaning, and thus it was not improper for the detective to continue
the interrogation unless and until Williams made his desire for counsel clear,
something he never did. Williams's counsel question was similar to the
suspect's question in Davis v. United States,------"Maybe I should talk to a
lawyer?"-that the Supreme Court held was not the unequivocal request for
counsel required to activate the Edward's prohibition against further
questioning. Neither was Williams's, "Can I tell my lawyer the real story and he
With respect to Williams, in sum, the trial court did not err either by
refusing to suppress Williams's August 29, 2007, statement to LMPD officers or
by denying his motion for separate trials. Williams's ambiguous references to
counsel during his questioning did not suffice to invoke his rights under
Miranda and Edwards, and the introduction of both defendants' statements did
not require separate trials where the statements were redacted in compliance
with Bruton, Richardson, and Gray.
Commonwealth v. Quisenberry -- 2009-SC-000302-MR
We turn now to the appeal of James Quisenberry. For his role in the
crimes perpetrated against Harper and her daughter, the jury found
Quisenberry guilty of first-degree robbery, second-degree manslaughter,
facilitation of both attempted murder and first-degree assault, and tampering
with physical evidence. Quisenberry's principal contention on appeal is that
the evidence was insufficient to support any of his convictions. He also
contends that cumulative punishment for the two facilitation offenses violates
the state and federal constitutional proscriptions against double jeopardy.
I. Sufficient Evidence Supported Quisenberry's Convictions.
In a criminal prosecution, of course, it is the Commonwealth's burden to
prove each element of the alleged offense beyond a reasonable doubt. In the
Matter of Winship, 397 U .S. 358 (1970) .
At the close of the Commonwealth's
case and again at the close of Williams's evidence, Quisenberry moved for a
directed verdict of acquittal on the ground that the evidence was insufficient.
The trial court is to grant such a motion only if the evidence, when construed
in favor of the Commonwealth, could not induce a reasonable juror to believe
beyond a reasonable doubt that the defendant is guilty.
"There must be
evidence of substance, and the trial court is expressly authorized to direct a
verdict for the defendant if the prosecution produces no more than a mere
scintilla of evidence." Commonwealth v. Benham, 816 S .W.2d 186, 187-88 (Ky.
1 .991) .
When the denial of a properly preserved directed verdict motion is
challenged on appeal, the standard of review is likewise whether, viewing the
evidence in the light most favorable to the Commonwealth, any rational juror
could have found all the elements of the crime . Id. As the Commonwealth
points out, however, our rules provide that "[a] motion for a directed verdict
shall state the specific grounds therefor." Kentucky Rule of Civil Procedure
(CR) 50 .01 .4 We have held that insufficiently specific motions for directed
verdict do not preserve sufficiency of the evidence challenges for appeal and
The Kentucky Rules of Criminal Procedure do not expressly provide for directed
verdicts, but by making directed verdict motions a prerequisite to a post-trial
motion for a judgment of acquittal, RCr 10.24 confirms the presumption that
directed verdicts may be entered in criminal cases . Under RCr 13 .04, any gap in
the Criminal Rules is filled by reference to the appropriate civil rule, here CR 50 .01 .
See Fate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004) and Daniel v.
Commonwealth, 905 S .W .2d 76 (Ky. 1995), applying CR 50 .01 to criminal cases .
that in such cases the appropriate standard of review is not the "any rational
juror" standard from Benham but the palpable error standard of RCr 10 .26 .
Johnson v. Commonwealth, 292 S .W.3d 889 (Ky. 2009) ; Potts v. Commonwealth,
172 S . W.3d 345 (Ky. 2005) .
Under that standard, appellate relief may not be granted unless a clear
error at trial affected the appellant's substantial rights and resulted in manifest
injustice . Commonwealth v. Jones, 283 S .W.3d 665 (Ky. 2009); RCr 10 . 26.
Whether in this context the two standards, "any rational juror" vs. "palpable
error," differ is open to some debate . Discussing the similar federal rules and
noting that an unsupported conviction is apt to violate a defendant's
substantial rights, the Ninth Circuit Court of Appeals has observed that it is
difficult to "envision a case `in which the result would be different because of
the application of one rather than the other of the standards of review."' United
States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201 (9th Cir. 2000) (quoting from
United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995)) . The
Fifth and Sixth Circuits, on the other hand, have held that unpreserved
sufficiency of the evidence challenges will result in reversal only "if the record is
devoid of evidence pointing to guilt." United States v. Damra, 621 F .3d 474,
494 (6th Cir . 2010) (citation and internal quotation marks omitted) ; United
States v. Robles-Pantoja, 887 F.2d 1250 (5th Cir. 1989) . There do not appear to
be any cases, however, in which relief was not available under one standard
but would have been under the other. Similarly, in Potts v. Commonwealth,
although we were at some pains to leave open the possibility that a failure of
proof might not amount to manifest injustice, the evidence in that case, we
held, was sufficient even under the "any rational juror" standard.
Similarly here . We agree with the Commonwealth that Quisenberry's
directed verdict motions, which asserted only the "insufficiency of the
evidence," did not comport with our rules' specificity requirement, and thus did
not properly preserve the issue for appeal . Our review, therefore, is under the
palpable error standard, but we need not decide how that review might differ
from review under the Benham "any rational juror" standard, for even under
the latter standard the evidence was sufficient .
Quisenberry concedes that for directed verdict purposes the
Commonwealth adequately proved Harper's murder, the assault upon Erica,
the commission of a robbery, and the tampering with physical evidence . The
photos of Harper's body at the scene ; the testimony of the officers who
witnessed Erica there; the medical examiner's reports ; the recovered bullets
and casings ; the ransacked safe, emptied purse, and strewn-about pill bottles ;
and the credit cards, driver's license, and other items found in the catch basin,
was evidence more than sufficient to permit a finding that the alleged crimes
occurred. What the Commonwealth failed to prove, however, according to
Quisenberry, was his participation in those crimes. He concedes his presence,
as his cell-phone records and DNA on the cigarette butt at the scene suggest
and as his statement to the detectives confirms, but mere presence at the
scene does not prove participation in the crimes. Otherwise, Quisenberry
maintains, there was no evidence that he intended or aided the robbery, that
he wantonly contributed to a substantial risk of Harper's death, that he knew
Williams intended to assault or to kill Erica and contributed to Williams's doing
or attempting to do so, or that he had anything to do with concealing either the
murder weapon or the property stolen from Harper. The Commonwealth failed
to prove, in other words, according to Quisenberry, that he bore a criminal
state of mind or did anything to further the crimes . We disagree .
A. There Was Sufficient Evidence of Quisenberry's Participation
Seldom is there direct evidence of a defendant's state of mind, but direct
evidence is not required. As we recently reiterated in Rogers v. Commonwealth,
315 S.W .3d 303 (Ky. 2010), state of mind--intent in that case-may be
established by circumstantial evidence . That evidence includes the defendant's
"actions preceding and following the charged offense," Commonwealth v.
Suttles, 80 S .W.3d 424, 426 (Ky. 2002), as well as the defendant's knowledge
and the surrounding circumstances. Marshall v. Commonwealth, 60 S.W .3d
513 (Ky. 2001) . With respect to robbery, moreover, we also noted in Rogers
that to be convicted of that crime, "the accused need not have taken any money
or other property from the victim with his own hands, or actually participated
in any other act of force or violence ; it is sufficient that he came and went with
the robbers, was present when the robbery was committed, and acquiesced ."
315 S .W .3d at 312 (citing Commonwealth v. Smith, 5 S .W.3d 126 (Ky . 1999)) .
From those circumstances, a reasonable juror could infer that the accused
intended the robbery to occur and lent aid, if only by virtue of his approbation
and the extra intimidation his presence adds to the force employed by others .
See KRS 502.020 (providing in part that one is guilty of an offense committed
by another if, intending to promote the offense, he aids in its commission) .
Here, of course, there was evidence that the two defendants had been
together at a Walgreens pharmacy not long before the crimes, which permitted
an inference that they drove to Harper's home together, and there was also
Rashon Turner's testimony that Williams arrived at his mother's house in a car
driven by Quisenberry, permitting an inference that the two left the robbery
together as well. Turner also testified that Williams claimed Quisenberry went
with him to Harper's house to obtain pills . By his own testimony, of course,
Quisenberry acknowledged being present at Harper's home when the robbery
must have occurred. The phone records established two calls to Harper from
Quisenberry's phone, shortly after midnight on May 18 . Given the evidence
that Harper's pills were stolen, a reasonable juror could also infer that the
pair's trip to the Walgreens pharmacy was also somehow an attempt to obtain
pills, and that their breaking into the Walgreens pharmacist's car could
reasonably be thought related: retaliation perhaps, or, at the very least,
evidence of the men's willingness that night,to break the law in pursuit of their
goals . Not only was there evidence that Quisenberry drove Williams to and
from the scene, but when the police interviewed him not long after the crimes,
he concealed what he knew. From these circumstances a reasonable juror
could conclude that Quisenberry was not a mere bystander at the robbery, but
that he initiated contact with Harper, that he shared with Williams the purpose
of obtaining drugs by whatever means necessary, that he drove the pair to
Harper's home, and, however the robbery may have commenced, acquiesced in
it once it had, and assisted in the getaway. There was sufficient evidence, in
other words, of Quisenberry's complicity in the robbery; the trial court did not
err by so finding.
B. There Was Sufficient Evidence Of Manslaughter .
With respect to the charge of second-degree manslaughter, we note that
if in the course of a robbery a participant other than the defendant commits an
act of killing, the defendant may be judged complicit in the killing to the extent
that his participation in the robbery establishes, with respect to the killing, a
culpable state of mind, whether intent, aggravated wantonness, wantonness, or
recklessness . Meredith v. Commonwealth, 164 S .W.3d 500 (Ky. 2005) . To
justify an instruction on second-degree manslaughter, which applies to wanton
killings, KRS 507 .040, the Commonwealth was required to prove that
Quisenberry acted wantonly, i.e., that the robbery posed a substantial risk to
Harper's life and that Quisenberry consciously disregarded that risk when he
participated in the robbery.
Repeating his argument that the evidence failed to establish his
participation in the robbery, Quisenberry maintains that he, likewise could not
be deemed complicit in Harper's killing. As discussed above, however, there
was sufficient evidence that Quisenberry joined in the robbery. His ability to
describe the murder weapon to the detectives, moreover, permits an inference
that he knew Williams was armed, and we have held that knowing participation
in an armed robbery, where there is obviously a substantial risk that someone
will be killed, may be deemed wanton, at least. .ruse v. Commonwealth, 704
S .W.2d 192 (Ky. 19.85) . The trial court did not err, therefore, by instructing the
jury on second-degree manslaughter .
C. By Requesting Facilitation Instructions, Quisenberry Waived Any
Claim That The Evidence Was Insufficient As To Those Offenses .
Quisenberry next contends that the evidence fails to support his
convictions for facilitating the assault upon and the attempted murder of Erica .
As the Commonwealth points out, however, at the close of proof, when the trial
court and parties were discussing the jury instructions, Quisenberry himself
requested facilitation instructions and referred the court to evidence he claimed
supported them . These alleged errors, therefore, were not merely unpreserved,
they were invited. Generally, a party is estopped from asserting an invited
error on appeal. Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006) . Noting
the United States Supreme Court's distinction, in United States v. Olano, 507
U .S. 725 (1993), between forfeited errors, which are subject to plain error
review, and waived errors, which are not, the Ninth Circuit Court of Appeals
has held that invited errors that amount to a waiver, i.e., invitations that reflect
the party's knowing relinquishment of a right, are not subject to appellate
review. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) . Applying that
approach to a case very much like this one, in which the defendant requested a
manslaughter instruction as a lesser offense, was convicted of manslaughter,
and then appealed on the ground that the manslaughter evidence was
insufficient, the Court of Appeals of Maryland held that the defendant's
"specific request for a voluntary manslaughter instruction . . . constituted an
intentional waiver of the right to argue on appeal that the evidence was
insufficient to support the voluntary manslaughter conviction." State v. Rich, 3
A.3d 1210, 1218 (Md. 2010) . We agree.
Quisenberry's express representation to the trial court that the evidence
of facilitation was sufficient, waived his right to claim on appeal that it was not .
Quisenberry is not entitled to relief from his facilitation convictions, therefore .
Moreover, he would not be even were we to consider his claim on the merits, for
it was not unreasonable for the jury to entertain a reasonable doubt that
Quisenberry intended or promoted the attack upon Erica but to believe that he
knew at some point that the attack was about to occur or was occurring and
yet remained and continued to assist Williams, at least by driving him away
from the scene.
D . There Was Sufficient Evidence That Quisenberry Tampered With
Physical Evidence .
Finally, Quisenberry contends that the evidence does not support his
conviction for tampering with physical evidence . Under the pertinent section of
KRS 524 . 100, a person is guilty of that offense when, believing that an official
proceeding may be instituted he "destroys, mutilates, conceals, removes or
alters physical evidence which he believes is about to be produced or used in
the official proceeding with the intent to impair its verity or availability in the
official proceeding." The jury was instructed that it could find Quisenberry
guilty of tampering if "acting alone or in complicity with Kenneth Williams, [he]
concealed or removed firearms or personal property of Earon Harper that he
believed were about to be produced or used in a criminal prosecution or official
proceeding ." We have upheld this sort of combination principal/ abettor
instruction where there is evidence that two or more defendants acted in
concert, but it is not clear whether both were principals or which was principal
and which abettor. Halvorsen v. Commonwealth, 730 S .W.2d 921 (Ky . 1986) .
Here, the evidence that Quisenberry participated in the robbery and that
Harper's personal effects and those of the Walgreens pharmacist were found a
short time after Harper's murder in a catch basin near her residence permitted
a rational juror to conclude either that Quisenberry had aided Williams in
disposing of those items or that he had disposed of them (or some of them)
himself intending to conceal them and to prevent their use as evidence in the
proceeding against him. The trial court did not err by deeming the tampering
II . Quisenberry's Convictions For Facilitating Both Assault And Attempted
Murder Did Not Subject Him To Double Jeopardy .
Finally, Quisenberry contends that the charges of assault and attempted
murder of Erica are predicated on a single act and that his punishments for
facilitating each of those offenses thus violate his right under the double
jeopardy provisions of the United States and the Kentucky Constitutions not to
be punished more than once for a single crime. Had Erica been shot only once,
we might agree. But, under KRS 505 .020 and double jeopardy precedent, the
two gunshot wounds, one to the thigh and one to the head, support the two
As Quisenberry correctly notes, the Double Jeopardy Clauses of Section
13 of the Kentucky Constitution and the Fifth Amendment to the United States
Constitution protect against multiple punishments for the same offense as well
as against subsequent prosecution for the same offense after acquittal or
conviction . Commonwealth v. Burge, 947 S .W.2d 805 (Ky. 1996) . Generally,
the protections accorded by our state constitution "parallel those guaranteed
by the Fifth Amendment." Id. at 809 . The United States Supreme Court has
explained that the double jeopardy protection against cumulative punishments
"is designed to ensure that the sentencing discretion of courts is confined to
the limits established by the legislature . Because the substantive power to
prescribe crimes and determine punishments is vested with the legislature, . . .
the question under the Double Jeopardy Clause whether punishments are
`multiple' is essentially one of legislative intent ." Ohio v. Johnson, 467 U .S .
493, 499 (1984) (internal citations omitted) . Congress is presumed ordinarily
not to intend to punish the same offense under two different statutes, and
accordingly, "where two statutory provisions proscribe the `same offense,' they
are construed not to authorize cumulative punishments in the absence of a
clear indication of contrary legislative intent." Whalen v. United States, 445
U .S . 684, 692 (1980) . Whether different statutory provisions proscribe the
same offense may be determined by asking whether each provision "contains
an element not contained in the other; if not, they are the `same offense' and
double jeopardy bars additional punishment and successive prosecution ."
United States v. Dixon, 509 U .S. 688, 696 (1993) (citing Blockburger v. United
States, 284 U .S . 299 (1932)) .
In Kentucky, the General Assembly has declared its intent regarding
multiple punishments in KRS 505 .020 :
(1) When a single course of conduct of a defendant
may establish the commission of more than one (1)
offense, he may be prosecuted for each such offense .
He may not, however, be convicted of more than one
(1) offense when :
(a) One offense is included in the other, as defined in
subsection (2) ; or
(b) Inconsistent findings of fact are required to
establish commission of the offenses ; or
(c) The offense is designed to prohibit a continuing
course of conduct and the defendant's course of
conduct was uninterrupted by legal process, unless
the law expressly provides that specific periods of such
conduct constitute separate offenses .
(2) A defendant may be convicted of an offense that is
included in any offense with which he is formally
charged. An offense is so included when:
(a) It is established by proof of the same or, less than
all the facts required to establish the commission of
the offense charged; or
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
(c) It differs from the offense charged only in the
respect that a lesser kind of culpability suffices to
establish its commission; or
(d) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to
the same person, property or public interest suffices to
establish its commission .
We have understood this statute to incorporate the Blockburger "same
elements" test, Clark v. Commonwealth, 267 S .W .3d 668 (Ky. 2008), but, as
noted above, to the extent that the statute expands upon or otherwise clearly
departs from Blocicburger, the General Assembly's intent controls . Under KRS
505 .020, a defendant may be prosecuted for both an offense and a lesser
offense included therein, but he may be convicted of and punished for only one
Quisenberry contends that under the facts of this case the assault on
Erica is a lesser offense included within the attempted murder, the two
offenses differing only in that the assault is established by a lesser kind of
culpability-the intent to injure-as opposed to the intent to kill required for
attempted murder . See KRS 505 .020(2)(c) (lesser included offense when only
difference is one offense involves "a lesser kind of culpability") . Lending some
support to this contention is Perry v. Commonwealth, 839 S.W.2d 268 (Ky.
1992) (citing Luttrell v. Commonwealth, 554 S .W.2d 75 (Ky . 1977)), in which .
this Court held that under KRS 505 .020, first-degree assault could, in certain
circumstances, be deemed a lesser included offense of attempted murder .
Noting the elements of the two offenses--for assault, intentionally causing
serious physical injury by means of a deadly weapon or dangerous instrument
and, for the attempted murder, taking a substantial step toward killing
someone with the intent to kill--=we explained that where the substantial step
element of attempted murder was satisfied by the same weapon-inflicted injury
constituting the assault, the only element separating the two offenses would be
the defendant's mental state, with the intent to injure a lesser kind of
culpability than the intent to kill. Perry involved two victims, one of whom,
Hayden, was shot once and survived, while the other, a deputy sheriff, was
shot several times and killed . As to Hayden, Perry shot him in the abdomen
but then allegedly stood over as if to shoot again and, while pointing the gun at
Hayden's head, said, "I'll let you live this time ." 839 S.W .2d at 270-73 . In
those circumstances, the Court held the trial court did not err by instructing
the jury on first-degree assault as a lesser included offense of attempted
murder, leaving it to the jury to determine whether Perry intended to kill
Hayden or just to injure him. Perry, 839 S .W .2d at 273. The jury in that case
convicted Perry of only first-degree assault as to Hayden . Notably, other
courts, faced with defendants convicted of both assault and attempted murder
have held that where the two charges are, based on a single gunshot, double
jeopardy precludes punishment for both . In the Matter of Orange, 100 P.3d 291
(Wash . 2005) ; Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994) .
Unlike the victims in Perry, Orange, and Anderson, however, who were
shot once, Erica was shot not once, but twice. Our double jeopardy precedent
recognizes this as an important distinction . In Welborn v. Commonwealth, 157
S.W .3d 608 (Ky. 2005), this Court unanimously held that where the defendant
shot the victim in the right arm, then the neck and, later, the shoulder, his
convictions for three separate charges of first-degree assault did not constitute
double jeopardy. The Court reasoned that assault is a "result" offense
requiring proof of three elements (the assailant's mental state, the means of
attack and a resulting injury) and that because each shot of the gun entailed a
culpable mental state, an attack on the victim and a separate injury, three
assaults occurred under KRS 508 .010 . Id. at 61.2 . In so holding, Welborn also
relied on Van Dyke v. Commonwealth, 581 S .W.2d 563 (Ky. 1979), a case in
which a defendant was convicted of two counts of rape and one count of
sodomy based on acts against one victim, spanning approximately 15 minutes .
Rejecting the concept that this was .one continuing course of conduct, Van
Dyke held that the fact that the criminal "acts occurred in a brief period of time
with the same victim and in a continuum of force" did not protect the
defendant from prosecution and conviction for each separate offense. 581
S .W.2d at 564 . Indeed, "the legislature intended to punish each separate act
of rape or sodomy ." Id. Perhaps because of its reliance on Van Dyke, the
Welborn Court also stated with respect to the assault case before it: "Each shot
was preceded by a sufficient period of time in which Welborn could reflect on
his conduct and formulate intent to commit another act ." 157 S .W.3d at 612 .
This "time to pause and reflect" concept was cited by this Court rather recently
in Terry v. Commonwealth, 253 S .W.3d 466, 474 (Ky. 2008), a case in which we
upheld against a double jeopardy challenge the defendant's convictions for two
counts of criminal mischief, one arising from damage to a mausoleum and
another from damage to a casket contained therein.
Obviously the proof in this case allows for no conclusions about the time
lapse between the two (or, as the medical examiner noted, perhaps three)
gunshots inflicted on Erica. However, other double jeopardy precedent clarifies
that each separate act violative of a criminal statute is a separate crime
regardless of the time intervening between the acts. Thus, in Ratliff v.
Commonwealth, 194 S .W.3d 258 (Ky. 2006), this Court unanimously upheld
the defendant's conviction for intentional murder and seven counts of firstdegree criminal abuse as to a twenty-month-old child. The child died of forcible
asphyxiation but had numerous burns and bruises on her body. In addressing
merger and double jeopardy as to the injuries, this Court noted that the trial
court had dismissed one count of criminal abuse involving injuries to the
child's mouth sustained in the asphyxiation because that course of conduct
ultimately led to the child's death . However, the remaining seven abuse counts
were properly based on discernibly separate acts of bruising and burning.
After noting that the criminal abuse statute "clearly delineates the infliction of
a single injury to be a unit of prosecution," the Ratliff Court held "[o]ne incident
of applying a hot cigarette lighter to L.M .'s body created the prohibited result
under KRS 508.100 . . . and the subsequent act of reapplying the hot cigarette
lighter to a different part of L.M .'s body constituted a second instance of
conduct proscribed by KRS 508 .100 ." 194 S .W.3d at 272-73 . Ratliff made no
reference to time to pause and reflect between criminal acts but focused,
properly, on the relevant statutory language and what the evidence supported,
i. e., how many separate violations of the statute occurred. See also Williams v.
Commonwealth, 178 S .W .3d 491, 495 (Ky. 2005) ("[A] person who generates
differing and multiple prohibited photographs or causes a child to engage in
the creation of such photographs commits multiple offenses (sic) of KRS
531 .310, even though each such differing photograph involves the same
subject captured in a narrow timeframe .")
Given this precedent, it is apparent that Quisenberry's convictions for
facilitating attempted murder and facilitating a first-degree assault are not
punishment for the same criminal act, in violation of the proscriptions on
double jeopardy. Erica's thigh and head injuries were markedly distinct, and it
is perfectly reasonable to regard them as constituting separate offenses, the
shot to the thigh an assault with the intent to injure and the shot to the head
an attempt to kill . Because Quisenberry was thus not punished twice for
having,facilitated a single crime, he is not entitled to double jeopardy relief.
In sum, the joint trial of Williams and Quisenberry was fair to both,
notwithstanding the introduction of paraphrased versions of their redacted
pretrial statements and their mutual denials of responsibility . In obtaining
Williams's statement, the police officers did not violate Williams's rights under
Miranda. The evidence of Quisenberry's participation in the crimes was
sufficient to support his convictions. And, finally, Quisenberry's convictions for
having facilitated both an assault upon and the attempted murder of Erica did
not violate his double jeopardy rights. Accordingly, in both 2009-SC-000418MR (Williams) and 2009-SC-000302-MR (Quisenberry), we affirm the
judgments of the Jefferson Circuit Court.
All sitting. All concur .
COUNSEL FOR APPELLANT,
V . Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLANT,
Daniel T. Goyette
Louisville Metro Public Defender
Public Defender Advocacy Plaza
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202
Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
717-719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601