Opinion
NO. 2011-CA-001959-MR
04-19-2013
LELAND STEVEN BURNS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Mark T. Smith Bowling Green, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 09-CR-01026
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, CLAYTON, AND STUMBO, JUDGES. CLAYTON, JUDGE: Leland Steven Burns appeals as a matter of right from the Warren Circuit Court's final judgment, which, pursuant to a jury verdict, convicted him of manslaughter in the second degree and sentenced him to prison for ten years. Burns contends that the jury was not properly instructed on the imperfect defense of self-protection of another and, therefore, he was deprived of his right to a fair trial. After careful review, we conclude that the jury instructions were erroneous because they did not provide the whole law of the case and, thus, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL DUE PROCESS
In October 2009, Leland lived with his wife, Mary Faye Burns; his son, Patrick Earl Burns; and Patrick's friend, Latasha Nicole Sampson. Because she was not allowed to live at her mother's home, Latasha had been living with the Burns family for about a month. Originally, Patrick and Latasha, who had been friends at Warren Central High School, dated each other but, at this point, were just friends. Notwithstanding their status as friends, they shared a bedroom in the Burnses' home.
Latasha met Casey Olmstead at Warren Central High School, too. She dated him a short time prior to her high school freshman year. They, however, had not been in contact for several years but reconnected on the social networking website, MySpace. They exchanged electronic messages and talked on the phone. Prior to the shooting incident that is the subject of this case, unknown to anyone in the Burnses' household, Casey picked up Latasha at the Burnses' residence and took her to an apartment where they had sexual intercourse.
On October 27, 2009, about a week later, Casey sent Latasha a text message about getting together again. By then, Latasha was no longer interested in Casey and was dating someone else. That evening in Patrick and Latasha's bedroom, she showed Casey's text message to Patrick on the cell phone that they shared. Then, she asked him to pretend to be her boyfriend and text Casey with this information. In addition, she informed Patrick about the evening that Casey and she spent together. Latasha said that she had sex with Casey, it was not consensual, and he had raped her. Following this request and revelation, a heated exchange, via text messaging, ensued between Casey and Patrick. Finally, Casey proposed to come to the Burnses' residence and fight Patrick. After Casey made the suggestion, Patrick texted "[y]ou'll get shot, I ain't playing." Then, Casey replied "shoot me," and "I'm on my way." It was about 10:00 p.m.
Approximately one hour later, while Patrick and Latasha were still in their bedroom, they heard a car horn honking in the driveway. As they rushed to the front door of the home, Patrick picked up a .40 caliber semi-automatic handgun. Latasha headed to the front door and began yelling at Casey. Patrick's mother saw his pistol and forcibly stopped him. At this point, Patrick told both his parents that Casey was there to fight him.
At this time, Leland retrieved his .45 caliber semi-automatic handgun. By then, Casey was pulling out of the driveway, but Leland went onto the porch anyway and shot his weapon three or four times at Casey's car. Leland maintained that he fired over the car to scare Casey off.
Around this time, Jerelyn Muth was driving on Galloway Mills Road, the road where the Burnses' residence is located and came upon Casey's car, which had run off the road. She also observed that the driver was not moving. Jerelyn attempted to call 911 but could get no reception. After going to another home, she knocked on the door but no one answered. She dialed 911 from another location and was able to reach it. The dispatcher said to return to the scene of the wreck and help the victim.
Because Jerelyn was frightened, she drove past the accident site to the Burnses' residence where the lights were on. After she informed them about the wreck, the Burnses and Latasha headed on foot to the scene of the wreck, and Jerelyn drove. Casey was in the driver's seat of the car with his seat belt fastened. He was unconscious. In addition, the car was running. Patrick reached in and turned the vehicle off.
Meanwhile, Kentucky State Police sent a trooper to the scene. Because of the remoteness of the area, it took some time for first responders to arrive. Initially, it appeared that Casey had no visible injuries, and the car had no significant damage. When the state police and emergency medical service providers (hereinafter "EMS") arrived, Leland at first interfered with EMS personnel. After he was asked to step back, Leland complied but continued waiting and watching intently in the background.
The investigation abruptly changed when state police learned that Casey had died of a gunshot wound. The state police then went to the Burnses' home to talk with the family. During the conversation, which was recorded by the state police, besides denying that he heard the wreck, Leland reported that he had gone outside on the porch and shot into the air to scare Casey off. Nonetheless, he denied that he shot Casey. Leland asked the state police to check the trees nearby to determine whether a bullet ricocheted off a tree.
Leland recounted that, during the incident, Casey had been hollering and yelling from his vehicle at the Burnses' residence and that the car had a lot of people in it. Latasha also alleged that, while she was talking with Casey, she heard other people's voices in the car. Nevertheless, the state police never located or identified any person or persons who might have been in the car with Casey. Leland offered the comment that he was afraid of drive-by shootings, which he had viewed on television. He also admitted that he was an avid shooter and owned between 25 and 30 firearms. The state police found the .45 caliber semi-automatic pistol in the home. It was loaded with one bullet in the chamber.
The coroner determined that Casey died of a gunshot wound to the chest. Furthermore, at the time of his death, Casey had no traces of drugs or alcohol in his system. Forensics established that the bullet that killed Casey was linked to Leland's semi-automatic pistol.
On December 16, 2009, Leland was indicted on charges of murder, tampering with physical evidence, and receiving stolen property-firearm. Before the trial began on July 26, 2011, the trial court ordered that the stolen property-firearm count be severed from the trial. At the close of the Commonwealth's case, Leland's defense counsel moved for a directed verdict on the charges. The trial court granted defense counsel's motion for a directed verdict on intentional murder but not wanton murder or tampering with physical evidence.
The defense called no witnesses and Leland voluntarily waived his right to testify at trial. At the close of the defense's presentation, defense counsel again moved for a directed verdict on the wanton murder and tampering with physical evidence charges. The motion, however, was again denied.
In addition, the trial court considered arguments and objections by counsel concerning jury instructions. Ultimately, the trial court denied defense counsel's request for jury instructions on imperfect self-defense, or protection, of another. Although the trial court stated that it could understand that a jury might possibly view Leland as having the justification of an imperfect self-defense of another, the court did not believe that such instruction was necessary. The trial court believed that since it granted defense's motion for a directed verdict to any charges of intentional degrees of murder, this defense was inapposite. Instead, the jury was instructed on wanton murder, manslaughter second-degree, reckless homicide, and protection of another defense.
The jury, on July 28, 2011, found Leland guilty of manslaughter in the second degree and acquitted him on the charge of tampering with physical evidence. After the penalty phase, the jury recommended a sentence of ten years. Leland was formally sentenced to ten years' imprisonment in a judgment entered on September 21, 2011. Prior to sentencing, the trial court denied all post-trial motions including probation. Leland now appeals as a matter of right from this judgment.
STANDARD OF REVIEW
The appellate standard of review in evaluating jury instructions is explained as "[a]lleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review." Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citing Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006)). Jury instructions are provided to give members of the jury guidance for their deliberations so that they are able to arrive at a correct verdict. Consequently, "[i]f the statements of law contained in the instructions are substantially correct, they will not be condemned as prejudicial unless they are calculated to mislead the jury." Ballback's Adm'r v. Boland-Maloney Lumber Co., 306 Ky. 647, 208 S.W.2d 940, 943 (1948).
ANALYSIS
1. Issues
Leland propounds a single assignment of error on appeal by claiming that since the trial court failed to instruct the jury on the imperfect defense of self-protection of another, the trial court abused its discretion, and he did not receive a fair trial. In contrast, the Commonwealth argues, and the trial court held, that the pertinent law provides that Leland was not entitled to such an instruction once the directed verdict was granted on the intentional murder charge. Furthermore, the trial court instructed the jury on self-defense of another, which was sufficient under the circumstances. Moreover, the Commonwealth maintains that, even if error occurred, it was harmless.
2. Jury Instructions
In the case at bar, the jury was instructed on three degrees of homicide - wanton murder, manslaughter second-degree, and reckless homicide -plus the defense of protection of another. The degrees of homicide differ primarily in the state of mind, or mens rea, necessary for conviction. Specifically, the prosecution must establish the degree of the offense by proving the state of mind of the defendant at the time of the act. Wanton murder requires a finding that a defendant engaged in conduct that created a grave risk of death of another. Kentucky Revised Statute (KRS) 507.020(1)(b). Manslaughter in the second degree requires that the defendant acted wantonly to cause the death of another. KRS 507.040. Lastly, reckless homicide requires that a jury find that a defendant caused the death of another by acting recklessly. KRS 507.050.
As noted, the trial court granted a directed verdict as to intentional murder. The jury was also instructed on tampering with physical evidence but acquitted the defendant, Leland, on that charge.
Besides the instructions on these three degrees of homicide, the jury was instructed on the defense of protection of another. Pursuant to KRS 503.070(2), the use of deadly physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect another person against death or serious physical injury. Therefore, the jury was instructed that Leland was permitted to use deadly force if he believed such force was necessary to protect Patrick.
The jury instruction on self defense used at the trial follows:
If at the time Leland Burns acted, he believed that Casey Olmstead was then and there about to use, or believed there was an impending danger that Casey Olmstead would use physical force upon Patrick Burns, he was privileged to use such physical force against Casey Olmstead as he believed to be necessary in order to protect Patrick Burns against it; but this privilege included the right to use deadly physical force in so doing, only if:Notwithstanding the instruction on defense of protection of another, the jury found Leland guilty of manslaughter in the second degree. Therefore, the jury did not believe that the self-defense justification was valid or Leland would have been acquitted.
(1) Leland Burns believed that Casey Olmstead was then and there about to use, or believed there was an impending danger that Casey Olmstead would use physical force upon Patrick Burns and that it was necessary to use deadly physical force in order to protect Patrick Burns from death or serious physical injury at the hands of Casey Olmstead;
AND
(2) Under the circumstances as they actually existed, Patrick Burns, himself, believed (a) that Casey Olmstead was then and there about to use, or believed there was an impending danger that Casey Olmstead would use physical force upon him and (b) that it was necessary to use deadly physical force in order to protect himself from death or serious physical injury at the hands of Casey Olmstead.
Leland, however, argues that the trial court erred when it failed to provide an instruction on imperfect self-defense of another. The imperfect self-defense of another is described in KRS 503.120(1):
When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.Paragraph two (2) of the statute states that, in cases where the defendant is justified in using force but the defendant wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by KRS 503.050 to 503.110 is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons. This statutory provision apparently influenced the trial court's decision that, once it granted the directed verdict on any degree of intentional murder, it eliminated the impact of Leland's intentionality and the justification of wantonness or recklessness was unavailable. Therefore, the trial court held that it was unnecessary to provide the jury with this instruction.
However, Casey was not an innocent bystander.
Leland's defense contended that the court's reasoning did not comport with caselaw. The Kentucky Supreme Court first held in Elliot v. Commonwealth, 976 S.W.2d 416 (Ky. 1998), that self-defense was allowed as a defense to a crime that did not require an intentional mens rea but rather a wanton or reckless state of mind. Additionally, the Court noted that, while imperfect self-defense or, in this case, the imperfect defense of protection of another was not originally permitted, it now recognized it, too, as a defense to several degrees of criminal homicide. Id. at 420. Imperfect self-protection (of another) does not provide complete exoneration but allows a jury to convict a defendant of a lesser offense, that is, one for which wantonness or recklessness is the culpable mental state. Id.
Subsequently, in Commonwealth v. Hager, 41 S.W.3d 828 (Ky. 2001), the Court examined the interplay between prior precedents and KRS 503.120(1). Unlike Elliott, Hager involved both intentional and unintentional homicide instructions, making it even more relevant to the situation herein. Therein, the Court stated:
The statute does not provide that a wantonly or recklessly held belief in the need to act in self-protection always reduces a primary offense to a lesser included offense. It provides that an act in self-protection committed under a wantonly held belief is no defense to an offense predicated on wantonness, and that an act in self-protection committed under a recklessly held belief is no defense to an offense predicated on recklessness . . . .Hager, 41 S.W.3d at 843. The Court then provided a chart of sorts demonstrating the possible impact of a successful claim of imperfect self-defense on various degrees of homicide. With regard to reckless homicide, the Court outlined the following:
Reckless homicide.
a. Actual belief not wantonly or recklessly held = acquittal.Id. at 844.
b. Wanton or reckless belief = reckless homicide, because a wanton belief could not elevate an offense with a mens rea element of recklessness to a higher offense, i.e. second-degree manslaughter, and a reckless belief makes self-protection unavailable as a defense to recklessness, the mens rea element of reckless homicide.
Based on this legal reasoning, if the jury had been provided with an imperfect defense of another instruction, and had ascertained that evidence supported it, the imperfect defense would have been a defense to wanton murder and manslaughter in the second degree. Regarding wanton murder, the jury could have discerned that Leland wantonly held the belief that Patrick needed protection, and, thus, was justified in using deadly force against Casey, thereby making the correct verdict manslaughter in the second degree. Likewise, with regard to manslaughter in the second degree, if the jury had deemed that Leland recklessly held the belief that Patrick needed protection, then he would have been justified in using deadly force against Casey, which would then render the correct verdict reckless homicide.
It is well-settled law that a trial court has a duty to instruct upon the whole law applicable to the case. As the Kentucky Supreme Court stated, "In a criminal case, the duty of the trial judge is to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); see also Kentucky Rules of Criminal Procedure (RCr) 9.54(1). Thus, we conclude that, under the circumstances of this case, Leland was entitled to instructions on the imperfect defense of protection of another. He was ultimately convicted of second-degree manslaughter, a crime with a wanton mental state. Under Hager, however, if the jury found that Leland acted recklessly in defending Patrick, he would not have been convicted of a homicide greater than reckless homicide. Because the instructions in this case did not allow that result, they are improper.
Since the failure to provide an instruction to the jury on imperfect defense of another may have resulted in a different conviction with a lesser punishment, we cannot say the error was harmless.
CONCLUSION
For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed, and this case is remanded to Warren Circuit Court for a new trial consistent with this opinion and, at which, if the evidence is the same, Leland shall be entitled to an instruction on the defense of imperfect self-protection of another.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark T. Smith
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky