Mullikan v. Commonwealth
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Appellant Jason Lee Mullikan was convicted of several crimes, including wanton endangerment for chasing two men with a Samurai sword. Mullikan raised nine grounds on appeal, and the Supreme Court only found one had merit, the issue of whether testimony in the penalty phase describing facts and circumstances underlying Mullikan's prior convictions was unduly prejudicial and merited a new penalty phase. After acknowledging that it had previously failed to provide a discernable and workable rule of law to follow when introducing evidence of prior crimes at the sentencing stage, the Supreme Court held that the evidence of prior convictions allowable under Kan. Rev. Stat. 532.055(a) is limited to conveying to the jury the elements of the crimes previously committed. Therefore, the Court held that the evidence in this case at the penalty phase was unduly prejudicial because it was not only inadmissible hearsay, but went beyond the statutory language of Ky. Rev. Stat. 532.055(2)(a). The Court affirmed the convictions but remanded for a sentencing trial consistent with this opinion.
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RENDERED : JUNE 16, 2011
TO BE PUBLISHED
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2009-SC-000519-MR
JASON LEE MULLIKAN
V
APPELLANT
ON APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B . WOOD, JUDGE
NO . 08-CR-00149
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Appellant, Jason Lee Mullikan, lived with his parents in Maysville,
Kentucky . Soon after Kent Fields moved in next door, Mullikan became
strangely paranoid that Fields was trying to harm him. He believed that Fields
had attempted to ram his vehicle and also suspected that Fields had killed his
cat. Mullikan was further convinced that Fields was breaking into his home
and trying to poison his water . On September 18, 2008, a state trooper came
to Mullikan's home to collect a bottle of water which Mullikan claimed tasted
funny .
On that same day, Mullikan saw Fields walking down the street . He
approached Fields from behind and attacked him . Apparently, Mullikan's
purpose in attacking Fields was to deter him from continuing with what
Mullikan believed was a design to harm him. An individual by the name of
Frank Fryman helped to break up the fight after Mullikan had gotten the worse
of it . The intervention of Fryman fed Mullikan's paranoia to the point that he
also believed Fryman was conspiring with Fields to do him harm. Mullikan
then ran into Fields's home with Fields in hot pursuit . Inside the house,
Mullikan grabbed a Samurai sword and threatened Fields by saying, "I'm going
to kill you ." He exited the house, swinging the sword at both Fields and
Fryman . When Mullikan heard sirens and the police approaching, he ran to
his home where the police arrested him . In the course of the arrest, Mullikan
threatened and made obscene gestures toward the police . He also spat on the
face of one of the officers . An EMS on the scene cleaned the officer's face, and
other law enforcement personnel sprayed him with a decontaminant spray.
Mullikan was indicted and convicted of two counts of first-degree wanton
endangerment for chasing Fields and Fryman with the Samurai sword ; one
count of second-degree burglary for his unauthorized entry into Fields's home;
one count of third-degree assault for spitting on the police officer ; and two
counts of third-degree terroristic threatening for allegedly threatening to kill
Fields and Fryman. In accordance with the jury's recommendation, the trial
court sentenced Mullikan to five years for each count of wanton endangerment,
five years for third-degree assault, ten years for second-degree burglary, and
twelve months for each count of terroristic threatening, for a total term of
imprisonment for twenty years .
Mullikan raises nine grounds on this appeal . We find that only onewhich will be addressed last-has merit .
I. ANALYSIS
1 . There was no Double Jeopardy Violation in Mullikan's
Convictions for First-Degree Wanton Endangerment and
Third-Degree Terroristic Threatening of Same Victims.
This issue is unpreserved, but we have long held that "double jeopardy
questions may be reviewed on appeal, even if they were not presented to the
trial court." Cardine v. Commonwealth, 283 S .W .3d 641, 652 (Ky . 2009),
quoting, e.g., Terry v. Commonwealth, 253 S .W.3d 466, 470 (Ky . 2008) .
As Mullikan points out, prior Kentucky double jeopardy precedent holds
that a defendant cannot be properly convicted of both wanton endangerment
and terroristic threatening of the same victim because "the terroristic threat is
included in the wanton endangerment ." Watson v. Commonwealth, 579 S .W.2d
103, 104 (Ky. 1979), overruled on other grounds by Commonwealth v. Clemons,
734 S .W.2d 459, 461 (Ky. 1987) . See also Commonwealth v. Black, 907 S .W .2d
762, 763 (Ky. 1995) . Such precedent pre-dates our landmark decision in
Commonwealth v. Burge, 947 S .W.2d 805 (Ky. 1996), in which we abandoned
the "single impulse" or "same conduct test" in favor of deciding questions of
whether convictions on two offenses were prohibited under the double jeopardy
clause using the Blockburger test. See Blockburger v. United States, 284 U .S .
299 (1932) . See also Burge, 947 S .W.3d at 809-11 .
Under a proper Blockburger analysis, "Double jeopardy does not occur
when a person is charged with two crimes arising from the same course of
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conduct, as long as each statute `requires proof of an additional fact which the
other does not."' Id. at 809, quoting Blockburger, 284 U.S . at 304 . Properly
applying the Blockburger analysis, we are forced to overrule our precedent
holding that convictions on both wanton endangerment and terroristic
threatening of the same victim are barred under the double jeopardy clause .
The elements of first-degree wanton endangerment and third-degree
terroristic threatening are quite different . First-degree wanton endangerment
requires that "under circumstances manifesting extreme indifference to the
value of human life, [the defendant] wantonly engages in conduct which creates
a substantial danger of death or serious physical injury to another person ."
KRS 508 .060(l) . Third-degree terroristic threatening, on the other hand, does
not require that the defendant engage in conduct creating such serious risks to
another person "under circumstances manifesting extreme indifference to the
value of human life ." On the contrary, it simply requires that the defendant
threaten to commit any crime likely to cause death, serious physical injury or
substantial property damage . KRS 508 .080(1) .
Therefore, terroristic threatening requires a threat to commit a crime, but
wanton endangerment does not require such a threat . And wanton
endangerment requires actual conduct placing others at serious risk, but
terroristic threatening does not require such actual conduct or such actual
serious risk . Consequently, convictions on both offenses do not violate
KRS 505 .020 because terroristic threatening is not "included within" wanton
endangerment since terroristic threatening is not "established by proof of the
same or less than all the facts required to establish the commission or' wanton
endangerment.
Because each conviction requires proof of a fact that the other conviction
does not, Mullikan's convictions for both wanton endangerment and terroristic
threatening of Fields and Fryman do not constitute a double jeopardy violation
under a proper Blockburger analysis .
2. Trial Court Did Not Abuse Discretion in Denying Mullikan's
Request for DNA Testing or Fingerprinting of Water Bottle .
Before trial, Mullikan moved the trial court to require DNA and
fingerprint testing on the water bottle that police had collected from him. The
trial court denied this motion, partly because of the collateral nature of the
inquiry and partly because of concerns that such testing could not be
completed by the time of trial . Mullikan contends that this was error because
such testing might have indicated that the water bottle that KSP tested for
harmful substances was not the same water bottle Mullikan had asked them to
test . Such DNA and fingerprinting testing was not reasonably necessary for
Mullikan's complete defense . See Hicks v. Commonwealth 670 S .W.2d 837,
.,
838 (Ky. 1984) ; Smith v. Commonwealth, 734 S .W .2d 437, 447-48 (Ky. 1987) ;
Sommers v. Commonwealth, 843 S.W .2d 879, 884-85 (Ky. 1992) .
Mullikan was clearly able to present, as part of his defense, his assertion
that he believed Fields was trying to poison him. The truth of this asserted
belief is simply not pivotal to Mullikan's guilt or innocence on the charged
offenses . As we explain later in this opinion, even if Mullikan was correct that
Fields had tried to poison him, there was no allegation of an imminent threat to
Mullikan at the time of the sword-brandishing incidents which would justify
his criminal actions . So DNA or fingerprint testing would have been unlikely to
result in relevant evidence of such probative value as to outweigh any concerns
such as undue delay or jury confusion . We find no abuse of discretion in the
trial court's refusal to order DNA or fingerprint testing of the water bottle . See
CR 26 .02 and KRE 102 .
3 . Trial Court Did Not Abuse Discretion in Controlling
Examination of Witnesses .
Before trial, the trial court ruled that neither Mullikan, who elected to
question witnesses himself, nor the prosecution would be allowed to approach
witnesses during questioning at trial. The trial court directed that all
examination of witnesses must be conducted while the examiner was seated at
counsel table . Despite Mullikan's objection that the jury would draw negative
inferences from this restriction, the trial court elected to impose this limitation,
citing allegations of Mullikan's history of assaults.
The trial court allowed Mullikan and counsel to conduct voir dire and
make opening statements and closing argument while standing at the lectern.
Mullikan and counsel were also allowed to approach the bench during bench
conferences and to otherwise move freely about the courtroom during trial.
We also note that the Commonwealth's exhibits presented to witnesses
were first passed to an attendant, who was designated to pass such exhibits to
witnesses, and that Mullikan's exhibits were handed to witnesses by standby
counsel . In other words, neither side was allowed to directly approach
witnesses while they testified at trial.
Mullikan claims that these courtroom controls deprived him of his rights
to due process and a fair trial . He argues that, despite the fact that the same
limitations were imposed on the prosecution and that he was not actually
physically restrained, these limitations suggested to the jury that he was guilty
of the charged offenses or, at least, was a dangerous man . He also complains
that these types of limitations would not have been imposed on an attorney
representing him, and that these limitations prevented him from being an
active participant in the trial .
Despite these complaints, we note that Mullikan has cited no legal
authority indicating that he has a right to approach witnesses during
questioning . On the other hand, the trial court has inherent authority to
control the trial proceedings and specific authority under KRE 611 (a) to control
the mode of interrogation of witnesses . This rule of evidence provides the trial
court with ample authority to exercise reasonable control over the interrogation
of witnesses so as to protect them from harassment and undue
embarrassment.
In light of the trial court's evenhanded treatment of both sides, we
discern no abuse of discretion in these precautionary limitations . It appears to
us that the trial court properly exercised its discretion to allow both sides a fair
trial while taking precautionary steps to ensure witness safety. See Allen v.
Commonwealth, 286 S.W .3d 221, 230 (Ky. 2009) .
4. No Palpable Error Arose from Witnesses' Brief References
to Mullikan's Prior Incarceration and Trial .
Mullikan conducted witness examination himself and testified in his own
defense . Some witnesses, particularly during their cross-examination by
Mullikan, made references to Mullikan's prior stints in jail and to a prior trial
in another case. Admitting that the issue is unpreserved, Mullikan contends
that palpable error arose as a result of two witnesses' references to his prior
trial and incarceration on other charges. We disagree with his contention and
conclude that he is not entitled to relief on this issue .
Even though prior bad acts are not admissible to prove criminal
disposition, Mullikan could have requested an admonition to this effect; but he
failed to do so and the brief references to an earlier incarceration and prior trial
did not amount to palpable error . KRE 404(b) .
The references to Mullikan's prior incarceration and trial occurred during
the testimony of police officers, Major Ron Rice and Sergeant Leo McKay. We
note that the references made by Rice to Mullikan's prior trial and
incarceration were elicited by Mullikan himself during cross-examination of
Rice. When Mullikan asked Rice whether he had told the officer of his belief
that Fields had broken into his home, Rice replied that Mullikan had not .
Mullikan then asked Rice whether he had had a conversation with Rice outside
the post office in which Mullikan complained about Fields, and whether Rice
recalled a conversation about a complaint concerning a minor verbal
altercation . Mullikan then asked if Rice recalled what the complaint or verbal
altercation was about, and Rice answered in the affirmative . Upon Mullikan's
8
further prodding to reveal the content of this complaint or verbal altercation,
Rice replied, "It seems that the gentleman had allegedly called you a nickname
that you had acquired while incarcerated at the detention center at one point,
and he referred to you by this nickname and that upset you ."
Sgt. McKay testified on direct examination that he went with Mullikan to
the hospital so that Mullikan could be treated for his facial injuries, and that
Mullikan told McKay that he had been assaulted by the undercover police
officer who the police were paying to poison his water. McKay further related
that Mullikan told McKay that he went to the undercover officer's house for a
confrontation when the officer struck Mullikan, and that Mullikan grabbed a
sword from a neighbor's house to defend himself. The prosecutor then asked
McKay whether Mullikan had told him that Mullikan thought he had been
poisoned by a particular individual . McKay testified that Mullikan said that a
certain individual had tried to poison him in jail, and that local police officers
were part of that poison.ing conspiracy.
Then, during Rice's rebuttal testimony, the prosecutor asked Rice
whether Mullikan had ever complained that Detective Michael Palmer had
broken into Mullikan's home. Rice stated that Mullikan's complaint against
Palmer was that Detective Palmer was not who he said he was . Then Mullikan
again cross-examined Rice and asked if he had ever told Rice that Palmer had
committed perjury, and Rice replied that he had looked into Mullikan's
allegations that Palmer had perjured himself in a prior trial involving Mr .
Mullikan .
Despite Mullikan's complaints that these references unfairly conveyed to
the jury during the guilt phase the fact that he had been in trouble in the past,
we conclude that no palpable error arose because most of these references to
earlier encounters with the law were elicited by Mullikan himself. Further, the
references were brief and likely of little effect in light of the overwhelming
evidence against Mullikan . Also, they were intertwined with Mullikan's efforts
to present his belief of a police conspiracy against him. In short, we discern no
"manifest injustice" from any alleged error here . So any error stemming from
the witnesses' brief references to Mullikan's prior incarceration and trial was
not palpable .
5. Mullikan Was Not Entitled to a Directed Verdict on the
Third-Degree Assault Charge .
Despite having failed to bring this specific issue before the trial court,
Mullikan contends that he was entitled to a directed verdict on the third-degree
assault charge, based on what he contends to be a lack of evidence of physical
injury. We disagree .
Admittedly, the police officer did not require hospitalization or require
treatment other than a decontaminant spray at the scene ; but the
Commonwealth introduced evidence through the police officer whom Mullikan
spat upon that he suffered an impairment of his physical condition because he
felt physically ill after the incident . And even if the jury did not accept the
officer's feeling ill as a physical injury caused by Mullikan's conduct, the jury
could also have reasonably concluded that Mullikan's conduct was an attempt
10
to cause a physical injury-such as the spread of a bodily-fluid-borne disease
even if no physical injury actually resulted . So we reject Mullikan's argument
that he was entitled to a directed verdict on third-degree assault as defined by
KRS 508.025(1)(a)(1), intentionally causing or attempting to cause physical
injury to a police officer .
6. Omission from Jury Instruction on Third-Degree Assault
of Element of Knowledge that Officer Acting Within
Official Capacity was Harmless Under Facts of Case .
Mullikan tendered an instruction on third-degree assault that differed
from the one given by the trial court. He argues that he was entitled to a
directed verdict on the third-degree assault charge, and that the trial court's
instruction on this charge was erroneous because it failed to require the jury to
determine whether Mullikan knew the victim was a police officer acting within
the course of his official duties when Mullikan spat on him . The
Commonwealth counters that any error was harmless because Mullikan
testified that he knew who the police officer was.
We adjudge there was error with the instruction . However, this error was
harmless . As the Commonwealth points out, Mullikan testified that he knew
the victim was a police officer acting in his official capacity. So we can
confidently state, beyond a reasonable doubt, that the jury's verdict on this
charge would not have changed if the trial court had instead given the jury the
proper instruction containing this element of the offense . We conclude that the
trial court's error in omitting the element of knowledge of the officer's official
capacity was harmless beyond a reasonable doubt, despite our presumption
11
that erroneous jury instructions are prejudicial . Commonwealth v. McCombs,
304 S .W.3d 676, 681 (Ky . 2009) .
7. Trial Court Properly Denied Requested Instruction on
Choice of Evils .
Mullikan requested a jury instruction on the defense of choice of evils .
The trial court denied these requests, but instructed the jury on self-protection
defenses with initial aggressor and provocation qualifications. Mullikan
contends that the trial court erred in refusing to give his tendered instruction
on choice of evils . We agree with the trial court and the Commonwealth that
Mullikan was not entitled to such an instruction because of the lack of
evidence of a threat of imminent injury .
KRS 503 .030(1) provides that conduct that would otherwise be
considered unlawful may be justified "when the defendant believes it to be
necessary to avoid an imminent public or private injury greater than the injury
which is sought to be prevented by the statute defining the offense charged
. . . . " But Mullikan's tendered jury instruction did not require the jury to find
that Mullikan believed his conduct was necessary to avoid an imminent injury.
Mullikan's tendered instruction simply asked the jury to find whether he
believed his conduct was necessary to avoid an injury.
We also believe the trial court properly denied an instruction on choice of
evils based upon Senay v. Commonwealth, 650 S .W .2d 259 (Ky. 1983), in
which we clarified that evidence of a defendant's "general fear" stemming from
earlier events was not sufficient to justify an instruction on choice of evils. To
12
be more precise, to be entitled to a choice of evils instruction, the record must
contain evidence that the defendant perceived an immediate threat of injury at
a time very close to-if not entirely contemporaneous with-his allegedly
unlawful action. Id. a t 261 .
Here, Mullikan may have generally feared that he would be poisoned or
otherwise harmed by Fields or others at the time he attacked Fields, but there
was no evidence that Fields had made any specific threats to Mullikan
immediately before Mullikan grabbed him. Nor was there any evidence of any
specific or imminent threat from Fryman or others, despite Mullikan's belief
that perhaps Fryman was working with Fields to harm him. Furthermore,
Mullikan's testimony that many of his actions were intended to "frighten"
Fields and Fryman undercuts his argument that he believed his actions were
necessary for the purpose of defending himself against an imminent physical
threat . We agree with the trial court that Mullikan was not entitled to a choice
of evils instruction.
8. Trial Court Properly Refused to Give Mullikan's Tendered
Instruction on Mistake of Fact.
Mullikan asserts that the defense he wished to present was that he had
mistakenly believed that Fields had earlier attempted-and would again
attempt-to kill him, and that he mistakenly believed Fryman was working
with Fields in this endeavor . Accordingly, Mullikan tendered an instruction on
mistake of fact . His tendered instruction stated he would not be guilty of the
charged offenses if "he reasonably believed" he was threatened with break-ins
13
or other harm and "therefore did not form the intention to commit the [charged]
offenses" and "that he believed that this actions were necessary in self-defense
and that belief was not wantonly or recklessly held." But the trial court
declined to give this instruction, stating that an instruction was warranted on
self-protection, but not on mistake of fact.
We conclude that the trial court's refusal to give the tendered mistake of
fact instruction was proper . While, undoubtedly, mistake of fact is governed by
a subjective standard and there is no requirement to show that a mistake of
fact be reasonable for this defense to be available, a mistake of fact is not a
defense to a charge unless the mistake "would support a defense of
justification" or otherwise show that the charged offense, as defined by statute
(including express defenses and mental state requirements), could not have
been committed . See Walker v. Commonwealth, 127 S .W.3d 596, 608 (Ky.
2004) ; KRS 501 .070 .
Even if Mullikan had been correct that Fields and Fryman had attempted
to kill him on some earlier occasion, or that they would do so at some
unspecified time in the future, he would not be justified in engaging in
otherwise criminal conduct unless he believed it necessary to avoid an
imminent injury. KRS 503 .030 . And as previously discussed, there was no
evidence of threats of imminent injury when Mullikan accosted Fields on the
street or when Mullikan entered Fields's home and began brandishing a sword
and making verbal threats. Therefore, the trial court was correct in declining
to issue Mullikan's tendered instruction on mistake of fact as a defense .
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9. Testimony in Penalty Phase Describing Facts and
Circumstances Underlying Mullikan's Prior Convictions
was Unduly Prejudicial and Merits New Penalty Phase .
KRS 532 .055(2)(a) states in part that, in the sentencing stage in felony
cases, "[e)vidence may be offered by the Commonwealth relevant to sentencing
including : (1) [m]inimum parole eligibility, prior convictions of the defendant,
both felony and misdemeanor; (2) [t]he nature of prior offenses for which he
was convicted . . . . .. It is clear from the statute that the legislature intended for
juries to be able to consider more information about a defendant's prior
criminal history than just the identification of "prior convictions." This is made
clear by the statute also allowing evidence as to the "nature of prior offenses ."
Here, during the penalty phase, testimony was presented by Lieutenant
Justin Horch of the Maysville Police Department who gave information
concerning Mullikan's prior convictions of fourth-degree assault, second-degree
fleeing or evading a police officer, and resisting arrest. Lt. Horch, however, was
not the investigating officer of this case . He testified that the previous offenses
took place at the Family Dollar Store near the K-Mart area where, at the time,
Mullikan was working at Little Caesars, which was located next door. Lt.
Horch further testified that a disagreement with one of the employees there had
ended with Mullikan putting his hands around a woman's neck . He stated he
believed the lady to be approximately sixty to seventy years old . All of the
information about which Lt. Horch testified was acquired from police reports or
other witnesses .
15
There are two problems which immediately come to mind when reviewing
this evidence. First, the testimony of the officer was clearly hearsay. KRE 602
states in part that "[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter ." Secondly, we must address whether the information
that was given is beyond the scope of the statutory term of the "nature of prior
offenses ."
This Court has been struggling for the last fifteen years, through a series
of cases, to define permissible evidence which may be introduced describing
the "nature of prior offenses ." We began this quest in the case of Robinson v.
Commonwealth, 926 S .W.2d 853 (Ky. 1996) . In Robinson, the victim of a prior
assault was allowed to testify at length as to the specifics of that crime. We
held that such testimony went beyond the permissible scope of the statute and
stated, "[A]11 that is admissible as to the nature of a prior conviction is a
general description of the crime." Id. at 855 . Of course, that case failed to put
an end to this dilemma as there is hardly any difference between "general
description of the crime" and the "nature of [the] prior offense[s] ."
Two years after Robinson, we held that the information recited at the
sentencing stage from the records of the defendant's convictions went beyond
the limitations set forth both in Robinson and KRS 532 .055(2)(a) . See Hudson
v. Commonwealth, 979 S .W.2d 106 (Ky. 1998) . In the Hudson case, the witness
testified as to the circumstances of each conviction from information included
on the warrants and uniform citations . In the case of Brooks v.
16
Commonwealth, 114 S .W .3d 818 (Ky. 2003), this Court upheld the introduction
of information regarding prior misdemeanors which had been gleaned from the
criminal complaints . We distinguished that case from Robinson because no
detailed testimony regarding the crimes was permitted .
Finally, we arrived at our latest word on this issue in Cuzick v.
Commonwealth, 276 S .W.3d 260 (Ky. 2009) . As evidenced by the split vote of
the Court in that case, we moved no closer to a clear definition of the "nature of
prior offenses ." The majority in Cuzick allowed information from the citation to
be read to the jury at the sentencing stage . The evidence was that, in the
previous burglary, the defendant utilized a baseball bat in breaking the glass
and making the entry. Through a fractured Court, we held that the
information regarding the prior offense could be provided to the jury.
This review of prior cases clearly reveals that we have failed to provide a
discernable and workable rule of law to follow when introducing evidence of
prior crimes at the sentencing stage. We recognize, by our previous struggles
with this issue, that trial judges and prosecutors are in desperate need of a
bright line rule . We attempt here today to provide them with a more easily
followed rule regarding what is permissible in showing the "nature of prior
offenses ."
It seems to us that the nature of a prior conviction is closely akin, if not
identical to, the definition of a prior conviction . In Robinson, this Court went to
great lengths in attempting to define the "nature of prior offenses ." The Court
seemed to settle upon "description of a general character" as being as far as is
17
allowed in dealing with these prior crimes . Therefore, we hold today that the
evidence of prior convictions is limited to conveying to the jury the elements of
the crimes previously committed . We suggest this be done either by a reading
of the instruction of such crime from an acceptable form book or directly from
the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we
feel, is best left to the judge . The description of the elements of the prior
offense may need to be customized to fit the particulars of the crime, i .e ., the
burglary was of a building as opposed to a dwelling . The trial court should
avoid identifiers, such as naming of victims, which might trigger memories of
jurors who may--especially in rural areas-have prior knowledge about the
crimes .
II. CONCLUSION
Therefore, we hold that the evidence in this case at the penalty phase
was unduly prejudicial because it was not only inadmissible hearsay, but went
beyond the statutory language of KRS 532 .055(2)(a) .
Based on the foregoing, we affirm the convictions but remand for a new
sentencing trial consistent with the dictates of this opinion .
Abramson, Noble, Schroder and Venters, JJ ., concur . Minton, C .J .,
concurs by separate opinion ; and Scott, J ., concurs in part and dissents in
part by separate opinion .
MINTON, C.J., CONCURRING: I concur with the majority opinion,
although I feel compelled to write separately to express my view that the Truth
in Sentencing issues for which we reverse Mullikan's sentence were not
18
properly preserved at trial . In my view, the trial court deserves credit for ably
dealing with the arguments that were actually presented to it. I concur with
reversing the sentence here because I believe the admission of factual details of
prior crimes amounted to palpable error under Kentucky Rules of Criminal
Procedure (RCr) 10 .26 . And I support adopting a clear rule prohibiting the
admission of factual details of prior crimes under Truth in Sentencing .
The majority reverses this sentence because the trial court allowed into
evidence in the sentencing phase details beyond the statutory elements of prior
convictions . I do not recall there being an objection raised in the trial court to
the overall level of detail presented concerning prior convictions. So I believe
the issue was unpreserved. But I agree with the majority that presenting
factual details of prior crimes beyond their statutory elements should not be
permitted . And such evidence amounted to palpable error because the
description of Mullikan's grasping a store clerk's neck and choking her was
quite prejudicial .
The record reveals that the basis of Mullikan's objections at trial was
different from our grounds for reversing. At trial, Mullikan voiced simply an
objection to Lt. Horch testifying to one specific detail : a victim's age . And the
Commonwealth responded to Lt . Horch's testimony about the victim being sixty
or seventy years old by stating that information about her age was
inconsequential and that the victim was actually younger - essentially
retracting the testimony about her age .
19
In addition to objecting to evidence of the victim's age, Mullikan raised
what he termed a "hearsay objection" to Lt. Horch's testifying about Mullikan's
prior convictions with the explanation that Lt. Horch was not the investigating
officer . Lt . Horch, of course, lacked personal knowledge of the details
surrounding Mullikan's earlier case . But because the Commonwealth
represented that Lt . Horch had some general knowledge of the earlier case as
the supervising officer, the trial court permitted Lt. Horch to testify further but
ruled that he could only testify to his general knowledge about the offenses and
not to specifics like the victim's age . Mullikan did not object further to the
hearsay nature of Lt. Horch's testimony .
Although Mullikan often referred to Lt . Horch's testimony as hearsay in
his brief to this Court, the parties did not argue hearsay or any exceptions or
exclusions to the hearsay rule in their briefs to this Court . Mullikan argued in
his brief to this Court that Lt. Horch's testimony was too detailed - an
argument he never made to the trial court apart from the specific objection to
the victim's age .
In fairness to the trial process, I believe that we are reversing on grounds
never argued to the trial judge and, to a large extent, perhaps also on grounds
not fully argued to this Court. In light of the actual arguments presented to
the trial court and our inconsistent precedent regarding the amount of detail
that may be presented in Truth in Sentencing concerning prior convictions, I
cannot fault the trial court's handling of the sentencing phase of this trial . I do
agree that a new sentencing phase is necessary so that a jury can fairly
20
determine an appropriate sentence without its judgment being clouded by
factual details of prior convictions . For that reason, I concur with the majority
opinion .
SCOTT, J ., CONCURRING IN PART AND DISSENTING IN PART: While I
concur with the majority on the other issues, I must dissent as to the
majority's conclusion that there was no double jeopardy violation with respect
to Mullikan's convictions for first-degree wanton endangerment and thirddegree terroristic threatening. Here, the defendant was convicted of both
offenses for chasing Fryman with a sword. I dissent because the majority
presumes no double jeopardy violation in this case without thoroughly applying
this Court's decision in Commonwealth v. Burge, 947 S .W .2d 805 (Ky. 1996) .
As a result, it is inconsistent with our precedent holding that convictions for
both first-degree wanton endangerment and third-degree terroristic threatening
of the same victim are barred under the double jeopardy clause .
I agree that Burge abandoned the "single impulse" or "same conduct"'
test in favor of deciding double jeopardy claims based upon the Blockburger
test. However, the majority glosses over the clear directive of Burge "to
determine whether the act or transaction complained of constitutes a violation
of two distinct statutes and, if it does, if each statute requires proof of a fact the
My double jeopardy analysis does not reinstitute the "same conduct" test, which
"provides that, `if, to establish an essential element of an offense charged in that
prosecution, the government will prove conduct that constitutes an offense for
which the defendant has already been prosecuted,' a second prosecution may not
be had." U.S. v. Dixon, 509 U.S . 688, 697 (1993) (citing Grady v. Corbin, 495 U .S .
508, 510 (1990)) . Rather, it recognizes that a thorough application of the
Blockburger test requires something more than sterile examination of statutory
language .
21
other does not." Id. at 811 (emphasis added) . This directive stems from the
Supreme Court's holding in Blockburger v. U.S., 284 U.S. 299, 304 (1932),
"that, where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not. (Emphasis added) . And we unanimously2 recognized in Clark
v. Commonwealth, 267 S .W.3d 668, 675 (Ky. 2008), that such an evaluation
determines whether a double jeopardy violation occurred :
If each statute requires proof of an additional fact which the other
does not, then conviction under the two statutes in question does
not violate double jeopardy. If, however, the exact same facts could
prove the commission of two separate offenses, then the double
jeopardy clause mandates that while a defendant may be
prosecuted under both offenses, he may be convicted under only one
of the statutes .3
(Citation omitted) (emphasis added) . Moreover, we recognized that, even
though an overlap of proof does not establish a double jeopardy violation of its
own accord, "an inability to point to the requirement of at least one mutually
exclusive fact in existence does." Id. at 677.
Here, although the elements of first-degree wanton endangerment and
third-degree terroristic threatening are different, 4 the exact same evidence had
to be used to satisfy the differing elements of the separate crimes . Specifically,
2
Justice Venters was not sitting .
3
KRS 505 .020 represents the codification of this analysis .
The Majority notes that terroristic threatening requires a threat to commit a crime
while wanton endangerment does not. Conversely, wanton endangerment requires
actual conduct placing others at serious risk while terroristic threatening requires
neither actual conduct nor actual serious risk .
4
22
without any reference to the record before us, the Majority assumes that
Mullikan was convicted of first-degree wanton endangerment for chasing
Fryman with a sword and third-degree terroristic threatening for allegedly
threatening to kill him. However, such an assumption belies its own factual
recitation, as Mullikan only verbally addressed Fields during this incident . 5
The only basis, then, for finding that Mullikan threatened to commit a crime
upon Fryman would be via non-verbal communication, i.e. chasing him with a
sword.6 As a result, there is "no viable distinction between" Mullikan's
convictions of first-degree wanton endangerment and third-degree terroristic
threatening with respect to Fryman, thereby yielding a double jeopardy
violation . Id. at 678 .
In summation, even though there are different elements of separate
offenses, if the same evidence is used to satisfy the differing elements of the
separate crimes, a double jeopardy violations results - even under Burge.
Because the exact same evidence had to be used to satisfy the differing
5
The Commonwealth implicitly concedes this point, as it points out that there were
"separate acts regarding Kent Fields ." Interestingly, the Commonwealth ignores
this issue with respect to Fryman .
6
While not raised by Mullikan, I question the sufficiency of the evidence to convict
him for committing a terroristic threat upon Fryman, as I can find no case affirming
such a conviction based on non-verbal communication . In fact, in Commonwealth
v. Black, 907 S.W.2d 762, 763 (Ky. 1995), this Court deemed the appellant entitled
to a lesser included offense instruction because "it would be reasonable for a juror
to believe that appellant verbally, but not physically, threatened the detective ."
(Emphasis added) ; But see Commonwealth v. Clemons, 734 S.W.2d 459, 462 (Ky.
1987) (Vance, J., dissenting) (stating that "[t]he pointing of a firearm at another
person, if it constitutes a threat, appropriately falls within the provision of K.R.S .
508 .080 dealing with terroristic threatening") . I also note that the terroristic
threatening charge was the subject of two questions from jury deliberations .
Specifically, the jury inquired if terroristic threatening only applied to verbal threats
and asked for a definition of "terroristic threatening ."
23
elements of first-degree wanton endangerment and third-degree terroristic
threatening with respect to Fryman, I dissent .
COUNSEL FOR APPELLANT :
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
James Coleman Shackelford
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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