Anderson v. Commonwealth
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Follow a jury trial, Ronnie Anderson was convicted of assault in the first degree and found to be a persistent felony offender in the second degree. On appeal, the Supreme Court reversed Anderson's conviction on the charge of assault in the first degree, holding that there was insufficient evidence of a serious physical injury, a necessary element of the crime, and therefore, the trial court violated Anderson's right to due process. The Court also held that the trial court correctly denied Anderson's motion to suppress statements he made on his cell phone prior to interrogation because they were voluntary, were not elicited by police, and were admitted in accord with the dictates of Miranda. Remanded.
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RENDERED: AUGUST 25, 2011
TO BE PUBLISHED
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Court of
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2010-SC-000205-MR
RONNIE LEE ANDERSON
V.
APPELLANT
ON APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
NO. 09-CR-00113
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING AND REMANDING
A Mason Circuit Court jury convicted Ronnie Lee Anderson of assault in
the first degree and found him to be a persistent felony offender in the second
degree. Anderson received twenty years imprisonment and appeals to this
Court as a matter of right, claiming the trial court committed reversible error
by denying his motion for a directed verdict; by failing to suppress statements
made during an interview with the police; and by instructing the jury to
determine his Persistent Felony Offender (PFO) status before determining the
sentence for his assault conviction. For the reasons set forth herein, we
reverse Anderson's conviction and remand for further proceedings consistent
with this Opinion.
RELEVANT FACTS
On July 26, 2009, Anderson, Andy Ormes and others gathered at a
friend's house for a barbecue. Anderson and Ormes got into a fight over
Anderson's girlfriend and Anderson cut Ormes's face, along the jawbone, with a
straight razor. Ormes later testified at trial, "The knife hit my jawbone. They
said if my jawbone didn't stop it, that I wouldn't be here today." According to
Ormes, the resulting gash was over an inch deep and bleeding when he was
taken by ambulance to the hospital. Joellen Jackson, the charge nurse on
duty in the emergency room that day, testified without explanation that she
considered Ormes's injury "serious," however, Jackson did not directly treat
Ormes and was only peripherally involved in his case. 1 Jackson further
explained the hospital assigned incoming patients a triage level from one to
five, with level one assigned to those "fixin' to die" and level five to those who
need to refill a prescription. Another nurse evaluated Ormes and assigned his
triage level that day, but Jackson, without consulting Ormes's chart, guessed
at trial that Ormes was probably a level two or three. Ormes also had an
"excessively high" heart rate, which the treating physician attributed to
adrenaline and treated with IV medication. Ormes's carotid artery was not
Nurse Jackson started Ormes's IV, prepared the suture kit and spoke with the
nurse and doctor on Ormes's case. The doctor was apparently on duty in
Afghanistan at the time of trial but there was no explanation as to the absence of
testimony by the treating nurse.
2
lacerated and the damage was repaired with sutures. 2 Ormes was sent home
the same day. Ormes claimed he was off work for "a while" after the incident
and has sharp pains near the scar "every once in a while." Notably, no medical
records from the emergency room admission were introduced at trial and there
was no proof Ormes received any additional medical treatment for the injury.
On the night of the incident, police officers took Anderson to the police
station for questioning. While waiting in an interrogation room, Anderson had
a conversation on his cell phone in which he made several incriminating
statements. Shortly thereafter, the investigating officer entered the room, read
Anderson his Miranda rights for the first time, obtained Anderson's signature
waiving his Miranda rights, and began the interview. Anderson made a motion
to suppress his statements to the police as involuntary due to his intoxication.
After a hearing on the matter, the trial court entered an order denying the
motion, finding that, "although having alcohol on his breath, [Anderson] was
clearly not so intoxicated as to make his statements involuntary or
untrustworthy." The court pointed out Anderson indicated he understood his
Miranda rights, "made coherent statements, had good coordination, answered
questions, made appropriate responses and statements, and was otherwise in
control of himself."
2
We refer to the absence of damage to Ormes's carotid artery because the
Commonwealth, at trial and in its brief to this Court, refers to Ormes's injury as a
neck injury. In fact, the trial evidence, especially photographs of Ormes in the
emergency room, clearly reflects a cut on his jawbone, with no injury to his neck.
The jury convicted Anderson of assault in the first degree and found him
to be a persistent felony offender in the second degree. 3 Adopting the jury's
recommendation, the trial court sentenced Anderson to twenty years
imprisonment. On a matter of right appeal to this Court, Ky. Const. §
110(2)(b), Anderson claims the trial court erred by denying his motion for a
directed verdict, by denying his motion to suppress, and by instructing the jury
to determine his PFO status before determining his sentence for assault. We
find there was insufficient evidence to convict Anderson of assault in the first
degree and accordingly reverse his conviction on that charge and remand for
further proceedings.
ANALYSIS
I. The Commonwealth's Proof Did Not Support a Conviction For Assault
in the First Degree.
Anderson claims there was insufficient proof of a "serious physical
injury" to convict him of assault in the first degree. This issue was not properly
preserved so our review proceeds pursuant to Kentucky Rule of Criminal
Procedure (RCr) 10.26, under which relief may be granted for a palpable error
that affects a party's substantial rights and results in a manifest injustice. 4 In
3
The jury was also instructed on assault in the second degree and assault in the
fourth degree but never reached these lesser included offenses, having found
Anderson guilty of assault in the first degree.
4
Anderson moved for a directed verdict at the close of the Commonwealth's case and
after all the evidence was presented but stated no specific grounds. Pate v.
Commonwealth, 134 S.W.3d 593, 597 (Ky. 2004) (CR 50.01 requires that the
movant state specific grounds for the directed verdict; a general motion forecloses
ordinary appellate review of a specific ground not presented to the trial court,
leaving only palpable error review.)
a criminal case, the Constitution of the United States mandates the
government must prove every element of the charged offense beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Miller v.
Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002). See also KRS 500.070(1).
Failure to do so violate the accused's right to Due Process. In re Winship, 397
U.S. at 364.
To convict Anderson of assault in the first degree, the Commonwealth
had to prove Anderson intentionally caused serious physical injury to Ormes
by means of a deadly weapon or a dangerous instrument; or, under
circumstances manifesting extreme indifference to the value of human life,
Anderson wantonly engaged in conduct which created a grave risk of death to
Ormes and thereby caused Ormes serious physical injury. KRS 508.010.
Under either option, Anderson must have caused a "serious physical injury,"
which is statutorily defined as a "physical injury which creates a substantial
risk of death, or which causes serious and prolonged disfigurement, prolonged
impairment of health, or prolonged loss or impairment of the function of any
bodily organ." KRS 500.080(15). This statute sets a "fairly strict level of proof
which must be met by sufficient evidence of injury." Prince v. Commonwealth,
576 S.W.2d 244, 246 (Ky. App. 1979). While medical proof is not necessary,
Brooks v. Commonwealth, 114 S.W.3d 818 (Ky. 2003), it certainly can assist in
establishing the seriousness of the injury. When determining whether a
defendant caused a "serious physical injury," the issue is not whether there
was proof of an act that could cause "serious physical injury." The issue is
whether there was proof of an act that did, in fact, cause "serious physical
injury." Commonwealth v. Hocker, 865 S.W.2d 323 (Ky. 1993) (Leibson, J.,
dissenting). After careful review of the record, we find there was insufficient
proof that Anderson caused a "serious physical injury" as defined by the
statute.
The only proof presented as to Ormes's injury was that Anderson cut the
side of Ormes's face, on the jaw line, with a straight razor, inflicting a
laceration that was one inch deep and bleeding. At the hospital, Ormes was
given IV medication for his elevated heart rate, Which the physician attributed
to adrenaline, his laceration was sutured and he was sent home. After the
incident, Ormes claimed he was off work for "a while" and has sharp pains in
his neck "every once in a while." There was no proof of any subsequent
medical treatment attributable to the injury.
In cases where the Court has found serious physical injury, it has
required a more exacting level of proof than the evidence presented in this case.
In Brooks v. Commonwealth, 114 S.W.3d 818 (Ky. 2003), the Court held the
victim, whose neck had been cut with a knife, had suffered a serious physical
injury. However, unlike the present case, in Brooks there was evidence of a
"substantial risk of death" where the victim. had two long crossing slashes on
his neck, stab wounds on the right side of his face and neck, and multiple
defensive wounds on both upper extremities.
Id. at 824. When emergency
technicians reached the victim, a large amount of blood was pooled in his lap
and he required close observation after treatment. Id. Similarly, in
6
Commonwealth v. Hocker, 865 S.W.2d 323 (Ky. 1993), the Court found a
"substantial risk of death" where the victim sustained a skull fracture,
hemorrhaging, and blood clots, which required at least two days of continuous
observation and monitoring in the intensive care unit (ICU), followed by six
additional days of hospitalization. The Court in Parson v. Commonwealth, 144
S.W.3d 775 (Ky. 2004), considered for the first time what constitutes a
"prolonged impairment of health" for purposes of KRS 500.080(15). In Parson,
the Court determined substantial, prolonged pain constitutes a "prolonged
impairment of health" and found "serious physical injury" under this prong
where the victim suffered from headaches, neck pain, lack of range of motion
caused by muscle spasms, upper back pain, and numbness in her right arm
for five months after a car accident, and continued to have neck pain, for which
she was required to take medication regularly, at the time of the trial.
Id.
Here, unlike the numerous slashes, cuts, and severe blood loss in
Brooks, 114 S.W.3d 818, there was only evidence of a cut on Ormes's jaw and
no proof as to the severity of any blood loss. Unlike the critical skull fracture,
hemorrhaging and blood clots, which required continuous supervision in the
ICU and over a week in the hospital in Hocker, 865 S.W.2d 323, here the
laceration on Ormes's jaw was repaired with sutures and he was sent home the
same day; there was no proof as to any additional treatment. Unlike the
multiple incidents of prolonged pain, lost range of motion and arm numbness,
which required long-term medication in Parson, 144 S.W.3d 775, here there
was only testimony by Ormes that he was off work for "a while" and has sharp
pains in the area of the injury "every once in a while." While the scar on
Ormes's jaw does constitute a disfigurement, 5 it is not of sufficient severity to
support a finding of "serious physical injury" under the second prong of KRS
500.080(15), which requires not merely disfigurement, but "serious and
prolonged" disfigurement.
Slashing at someone's face and neck area with a straight razor certainly
could cause "serious physical injury." However, the question is not what could
have happened, but rather what did happen. The Commonwealth failed to
present proof that Ormes did in fact sustain a "serious physical injury," a
necessary element for first-degree assault. To convict Anderson when there is
a failure of proof on an element of the crime is a violation of Due Process and
thus a manifest injustice pursuant to RCr 10.26. Accordingly, Anderson's
conviction for first-degree assault must be reversed.
H. The Trial Court Correctly Denied Anderson's Motion to Suppress
Where There Was No Violation of His Miranda Rights.
We address Anderson's argument concerning the trial court's failure to
suppress the statements he made to police as it may recur upon any retrial on
the lesser included assault charges. 6 Anderson argues the trial court erred
when it overruled his motion to suppress statements made to the police, which
he contends were involuntary due to his intoxication. We disagree. Appellate
review of a trial court order on a suppression motion involves a two-step
5
Black's Law Dictionary defines "disfigurement" as "an impairment or injury to the
appearance of a person or thing." Black's Law Dictionary (9th ed. 2009).
6
See, McGinnis v. Wine, 959 S.W.2d 437 (Ky. 1998) (double jeopardy does not
preclude retrial on lesser included offenses).
8
analysis. Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky. 2002). First, the
factual findings of the trial court are conclusive if supported by substantial
evidence. Id.; RCr 9.78. Second, if the findings are supported by substantial
evidence, the appellate court conducts a de novo review to determine whether
the trial court's ruling is correct as a matter of law.
Whitmore, 92 S.W.3d at
79.
An otherwise voluntary statement will not be excluded on the basis of
intoxication unless the accused is "intoxicated to the degree of mania, or of
being unable to understand the meaning of his statements . . . Loss of
inhibitions and muscular coordination, impaired judgment, and subsequent
amnesia do not necessarily (if at all) indicate that an intoxicated person did not
know what he was saying when he said it." Britt v. Commonwealth, 512 S.W.2d
496 (Ky. 1974). Put another way, the basic question is whether the accused
was in "sufficient possession of his faculties to give a reliable statement." Id.
Having reviewed the record, we cannot say Anderson was so intoxicated
as to reach the point of mania or give an unreliable statement. After the
pretrial suppression hearing, the trial court found Anderson, "although having
alcohol on his breath, was clearly not so intoxicated as to make his statements
involuntary or untrustworthy." Anderson was sober enough to respond
appropriately to the officer's questions with facts and details about the day's
events, such as the specific street where he left his eyeglasses. He was able to
sit upright in his chair, had good coordination, could walk without difficulty
and was otherwise in control of himself. He was able to recognize and converse
9
with another officer he knew from a prior occasion. Officer Walton, the
investigating officer who interviewed Anderson, testified at the suppression
hearing that, based on his experience as a police officer, Anderson was not
intoxicated to the point of being unable to make voluntary and trustworthy
statements. Further, as the trial court noted, Anderson indicated he
understood his Miranda rights and signed the waiver form. We hold the trial
court's ruling was based on substantial evidence and Anderson was "in
sufficient possession of his faculties to give a reliable statement." Britt, 512
S.W.2d at 500. Accordingly, Anderson's statements were voluntarily made and
properly admitted.
It is not clear from Anderson's brief whether he is also arguing that the
statements he made on his cell phone before the interview commenced, which
were captured on videotape, were inadmissible because he had not yet been
Mirandized. Out of an abundance of caution, we address this issue and hold
the statements were properly admitted.
Miranda warnings are necessary only
where a person in custody is subjected to interrogation.. Rhode Island v. Innis,
446 U.S. 291 (1980); Miranda v. Arizona, 384 U.S. 436 (1966). Interrogation
may be express questioning or "any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response."
Innis,
446 U.S. at 301. When Anderson made the inculpatory statements he was
sitting in an interrogation room, voluntarily talking with someone on his cell
phone. A police officer was stationed in the corner of the room but he was not
10
speaking to or interacting with Anderson. Anderson was clearly not subject to
any express questioning or coercive tactics. Simply being in custody is not
sufficient to trigger the safeguards of Miranda. Smith v. Commonwealth, 312
S.W.3d 353 (Ky. 2010). As to these statements Anderson made in a phone call,
we conclude that because he was not interrogated, there was no violation of his
Miranda rights and his statements were admissible.
CONCLUSION
We reverse Anderson's conviction of assault in the first degree due to
insufficient evidence of a "serious physical injury," a necessary element of the
crime. While Anderson may have been intoxicated during his interview with
the police, he was not intoxicated to the point of mania. The trial court
properly admitted his statements as reliable and voluntarily made. The
statements Anderson made on his cell phone prior to interrogation were also
voluntary, were not elicited by police and were admitted in accord with the
,
dictates of Miranda. For the foregoing reasons, we reverse the judgment of the
Mason Circuit Court and remand for further proceedings consistent with this
Opinion. 7
All sitting. All concur.
7
We need not address at length Anderson's third argument, concerning the improper
penalty phase instructions. However, the trial court did err by requiring the jury to
determine Anderson's PFO status before determining his sentence for the assault
conviction and, thus, we are compelled to reiterate our directive for trial courts to
follow the procedure prescribed in Commonwealth v. Reneer, 734 S.W.2d 794 (Ky.
1987). See also Owens v. Commonwealth, 329 S.W.3d 307 (Ky. 2011).
11
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
12
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