DAVID R . NICHOLS V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 17, 2004
TO BE PUBLISHED
,suprmur 01ourf of
2002-SC-0163-MR
DAVID R. NICHOLS
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
2000-CR-0095 & 2000-CR-0105
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART AND REVERSING IN PART
I. INTRODUCTION
Appellant, David Nichols, was convicted of Wanton Murder and Assault under
Extreme Emotional Disturbance ("EED") and was also found to be a Second-Degree
Persistent Felony Offender ("PFO") . The jury recommended a PFO-enhanced
sentence of life on the Wanton Murder conviction and a PFO-enhanced sentence of ten
(10) years on the Assault under EED conviction . The jury recommended that the
sentences run concurrently with each other for a total sentence of life. The trial court
sentenced Appellant in accordance with the jury's recommendation, and he appeals to
this Court as a matter of right.' Appellant contends that the trial court erred : (1) in
refusing to instruct the jury on the defense of voluntary intoxication, (2) in placing the
EED instruction as it related to Intentional Murder in the "Presumption of Innocence"
instruction, (3) in failing to suppress his inculpatory statements made to the police while
1
KY . CONST. § 110(2)(b).
he was intoxicated, and (4) in failing to direct a verdict in his favor on the charges of
Intentional and Wanton Murder . Although we find that the trial court erred in failing to
instruct on voluntary intoxication, we hold that the omission was harmless as to the
Wanton Murder conviction, and therefore, we affirm that conviction . But, because of
the omission, we reverse Appellant's conviction of Assault under EED and remand for a
new trial on Assault under EED .
II. BACKGROUND
On Friday, August 18, 2000, after an evening at a local night club, a group of
individuals gathered at Charlie Mattingly, Jr.'s apartment in Lebanon, Kentucky. The
individuals were playing cards when Appellant arrived at the apartment. Appellant was
not well known to them since he had only briefly encountered some of the apartment's
occupants for the first time a few days earlier . Appellant left shortly after arriving, and
there was conflicting testimony at trial regarding the reason for his departure . Appellant
claimed that he was asked to leave but understood that he was welcome to return later .
The Commonwealth, however, claimed that Appellant was repeatedly asked to leave
because of his erratic behavior. The Commonwealth also claimed that Appellant
arrived at the apartment carrying a large kitchen knife and that some of the individuals
present in the apartment feared that he would become violent .
Upon returning to the building and after again being asked to leave, Appellant
became combative, stood outside the apartment building taunting the occupants of the
apartment, shouting threats, and waving the knife around . Several witnesses testified
that Appellant indicated that he wanted to take the knife and go to Water Street to "kill
some ni--ers" whom he claimed had stolen money from him . At some point, the
occupants of the apartment called the police and reported the disturbance .
Steven Pittman, a friend of the individuals inside the apartment, heard the
dispatch over his police scanner and proceeded to the apartment to check on the
occupants . Pittman testified that when he arrived at the residence, Appellant was
standing at the bottom of the steps leading up to the second floor apartment . Pittman
claimed that he moved past Appellant and went up to the apartment, and returned a
few minutes later to ask Appellant to leave. In response, Appellant hit Pittman in the
side of the head, knocking him to the ground, and then jumped on his back and began
stabbing him.
Several individuals from the second floor apartment came rushing down to help
and among them was eighteen (18) year old Joshua Wright. Wright attempted to pull
Appellant off of Pittman and was fatally stabbed in the chest by Appellant . Several
witnesses testified that after stabbing Wright, Appellant ran away from the group,
yelling, "Who else wants to die?" Wright's friends rushed him to the Spring View
Hospital, where he died a short time later. Pittman suffered serious but not fatal
injuries .
At trial, Dr. Keith Caruso, a forensic psychiatrist, testified that as a result of
childhood trauma, Appellant suffered severe mood swings and paranoid beliefs, but he
was not delusional . Appellant did not contest that he had stabbed Pittman and fatally
stabbed Wright; rather, Appellant claimed that he acted in self-protection or under the
influence of an extreme emotional disturbance . Appellant also maintained that because
he was intoxicated at the time of the events in question, he was unable to form the
requisite intent for the crimes charged .
As to the homicide charge, the trial court instructed the jury separately on
Intentional Murder, Wanton Murder, First-Degree Manslaughter, Second-Degree
Manslaughter, and Reckless Homicide . As to the assault charge, the jury was
instructed separately on Second-Degree Assault and Assault under EED . The absence
of self-protection was included as an element in all instructions except for the Assault
under EED instruction and the absence of EED was an element of the Intentional
Murder instruction . The trial court's instructions also included separate instructions on
self-protection .
A wanton or reckless belief qualification was added to the self-protection
instruction on the homicide offenses, and the self-protection instruction on SecondDegree Assault included a reckless belief qualification, which, if believed, would have
allowed the jury to convict Appellant of Fourth-Degree Assault . The instruction
captioned "Presumption of Innocence" directed the jury to find Appellant guilty of FirstDegree Manslaughter if they believed beyond a reasonable doubt that he was guilty of
Intentional Murder but had a reasonable doubt as to whether Appellant was acting
under the influence of EED. The trial court did not give an instruction on voluntary
intoxication nor make its absence an element of Intentional Murder, First-Degree
Manslaughter, or Second-Degree Assault .
Under the guidance of these instructions, the jury found Appellant guilty of
Wanton Murder and Assault under EED and also found him to be a Second-Degree
Persistent Felony Offender ("PFO"). In accordance with the jury's recommendation, the
trial court sentenced Appellant to a PFO-enhanced sentence of life on the Wanton
Murder conviction and a PFO-enhanced sentence of ten (10) years on the assault
conviction to run concurrently with each other for a total sentence of life .
III. ANALYSIS
A. Voluntary Intoxication Instruction
Appellant contends that the trial court committed reversible error in refusing to
instruct the jury on the defense of voluntary intoxication . "A voluntary intoxication
instruction is justified . . . when there is evidence that the defendant was so drunk that
he did not know what he was doing, or when the intoxication [negates] the existence of
an element of the offense ."2 In other words, "[w]henever a defendant adduces
sufficient evidence of voluntary intoxication, the defendant is entitled to an instruction
on the defense of intoxication ." 3 Although "mere drunkenness does not equate with the
Kentucky Penal Code's definition of the `defense' of voluntary intoxication ,,,4 we believe,
however, that the evidence here demonstrated more than "mere drunkenness" and
supported the requested instruction .
First, in his statement to Officer Waters, Appellant stated that he was "f--ked up"
as he had consumed several beers and a pint of vodkas shortly before his first
appearance at Charlie Mattingly, Jr.'s ("Mattingly") apartment. Second, the
Commonwealth's witnesses Mattingly, Mitchell Deering ("Deering"), and Jerry Abell
("Abell") perceived Appellant as being intoxicated . Mattingly testifed that Appellant was
"acting wild, like he was drunk or something ." Deering stated that Appellant seemed
under the influence and out of control. Abell testified that Appellant was under the
influence of alcohol or some other substance. Finally, Officer Waters testified that while
2 Rogers v. Commonwealth , Ky., 86 S .W.3d 29, 44 (2002) (footnotes and
internal quotation marks omitted) .
3 Mills v. Commonwealth , Ky., 996 S .W.2d 473, 490 (1999) .
4 Rogers , 86 S .W .3d at 44 .
5 The record indicates that Appellant may have consumed as much as one and
one-half pints of vodka and six or seven beers .
Appellant did not appear to be "fully" under the influence of alcohol, it was apparent to
him that Appellant had consumed alcohol at some point in the evening .
From this testimony, the jury reasonably could have concluded that Appellant
was intoxicated and that because of his intoxication, he could not have formed the
requisite mens rea for the offenses in the trial court's instructions that required specific
intent . Thus, in light of the evidence, and because a finding of intoxication would
negate the intent element of Intentional Murder, First-Degree Manslaughter, and
Intentional Second-Degree Assault, 6 we agree with Appellant and hold that he was
entitled to an instruction on voluntary intoxication . We find, however, that this error was
harmless' as to Appellant's Wanton Murder conviction because voluntary intoxication,
which does negate an element of specific intent offenses, does not negate any element
of Wanton Murder, particularly the mens rea of "wantonness . ,8
Citing Fields v. Commonwealth ,9 Springer v. Commonwealth , 1° and Slaven v.
Commonwealth ," Appellant argues that even though the trial court gave a SecondDegree Manslaughter instruction, the trial court was required to instruct the jury that if it
found Appellant not guilty of Intentional Murder as a result of his voluntary intoxication,
then Second-Degree Manslaughter "was the instruction that would apply," and the trial
court's failure to do so was reversible error.
6 Rogers , 86 S .W .3d at 44.
RCr 9 .24 .
8 KRS 501 .020(3) ; McGuire v. Commonwealth , Ky., 885 S.W.2d 931, 934 (1994)
("Voluntary intoxication does not negate culpability for a crime requiring a culpable
mental state of wantonness or recklessness, but it does negate specific intent.").
9 Ky., 12 S .W .3d 275, 283 (2000).
Ky, 998 S.W.2d 439, 454-55 (1999).
10
11
Ky, 962 S.W.2d 845, 856-57 (1997) .
-6-
Under Fields, Springer , and Slaven , Appellant was entitled to an instruction on
Second-Degree Manslaughter, and one was given by the trial court; however, he was
not entitled to a further instruction directing the jury to proceed directly to the Second
Degree Manslaughter instruction upon a finding of voluntary intoxication as that would
result in a by-pass of the Wanton Murder instruction. Fields, in particular, holds that if a
jury is instructed on voluntary intoxication as a defense to Intentional Murder or FirstDegree Manslaughter, it must also be instructed on Second-Degree Manslaughter as a
lesser included offense ; however, Fields, Springer , and Slaven do not hold that an
instruction on Wanton Murder is not warranted solely because the jury is instructed on
the defense of voluntary intoxication . It is the duty of the trial court to give instructions
on the whole law of the case and that means giving instructions on any alternative or
lesser offense supported by the evidence . 12 Accordingly, if a Wanton Murder
instruction was supported by evidence, it was appropriate regardless of whether the jury
was also instructed on the defense of voluntary intoxication . Here, the evidence
supported an instruction on Wanton Murder. Appellant, who admittedly was
intoxicated, engaged in a fight with Pittman and stabbed him in the back . When Wright
attempted to pull the Appellant off of Pittman, he fatally stabbed Wright in the chest.
From that evidence alone, it was not unreasonable for the jury to find that Appellant
either intentionally caused Wright's death or did so wantonly under circumstances
manifesting an extreme indifference to human life. Accordingly, we hold that even if the
trial court had instructed the jury on voluntary intoxication, it would not have been error
for the trial court to refuse to give a further instruction directing the jury to by-pass the
12
Holland v. Commonwealth , Ky., 114 S.W.3d 792, 802 (2003).
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Wanton Murder instruction and proceed directly to the Second-Degree Manslaughter
instruction .
Alternatively, Appellant contends that under Fields and Slaven his Wanton
Murder conviction was improper because a finding of voluntary intoxication reduces
Intentional Murder to Second-Degree Manslaughter. There is a great difference
between being entitled to a voluntary intoxication instruction and a jury finding of
voluntary intoxication, and, as previously explained, a finding of voluntary intoxication
does not foreclose a simultaneous finding of wantonness or aggravated wantonness, if
supported by the evidence . A finding of voluntary intoxication does not preclude a
conviction of Wanton Murder, and thus the failure to instruct on voluntary intoxication
was harmless as to Appellant's Wanton Murder conviction .
The Second-Degree Assault instruction, on the other hand, required the jury to
find that Appellant "intentionally caused a physical injury to Steve Pittman ." Because a
finding of voluntary intoxication by the jury would negate the specific intent element of
Second-Degree Assault, Appellant was prejudiced by the failure of the trial court to
instruct on voluntary intoxication as it deprived him of the lesser included offenses of
Wanton or Reckless Fourth-Degree Assault . We, therefore, reverse Appellant's
conviction of Assault under EED and remand to the trial court for retrial on Assault
under EED . 13
13
On any retrial, the instruction on Assault under EED will include the elements
of Second-Degree Assault as previously given by the trial court and the additional
element of "That in so doing, he was acting under the influence of an extreme
emotional disturbance ." The trial court will also instruct separately on intoxication, see
1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 11 :30 (4th ed . Anderson
1999), but it is not necessary to include the absence of intoxication as an element.
Slaven v. Commonwealth , Ky ., 962 S .W .2d 845, 857 (1997).
B. EED Instruction
Appellant claims that the trial court committed reversible error by "burying" the
EED instruction as it related to Intentional Murder in the "Presumption of Innocence"
instruction . He argues that because the EED instruction did not immediately follow the
Intentional Murder instruction (the first of eleven (11) instructions) and was placed
instead in the "Presumption of Innocence" instruction (instruction number ten (10)) the
jury was required to consider whether Appellant was guilty of the other offenses
"without fully understanding the complete intentional murder with extreme emotional
disturbance instruction ." He also argues that the jury was unclear as to how to apply
EED to Intentional Murder .
Appellant admits that this claim of error was not preserved for appellate review
by contemporaneous objection, but he urges this Court to conduct review under RCr
10 .26 . 14 We decline to do so because an alleged error is not reviewable under RCr
10 .26 unless (1) it is "[a] palpable error," and (2) "a determination is made that manifest
injustice [has] resulted from the error."15 Here, the claimed error is neither "palpable"
nor did "manifest injustice" result from it . "Palpable" means "[e]asily perceived ;
obvious ."1s Thus, a "palpable error' is an error that is easily perceived or obvious .
"[M]anifest injustice" means "[a]n error in the trial court that is direct, obvious, and
14
RCr 10 .26 ("A palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or by an appellate court on appeal,
even though insufficiently raised or preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the error.").
15
16
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 946
-9-
(4th ed . 2000).
observable, such as a defendant's guilty plea that is involuntary or that is based on a
plea agreement that the prosecution rescinds ."''
The placement of the EED instruction at the end, in the "Presumption of
Innocence" instruction, was not an error that is "direct, obvious, and observable ." The
absence of extreme emotional disturbance is not an element of murder. 18 "The
presence or absence of extreme emotional disturbance is a matter of evidence, not an
element of the crime . [It is] . . . a matter of the circumstances of each homicide ."' 9
Accordingly, no manifest injustice resulted from this claimed error.
Although we decline to review this claimed error in depth, the record shows that
the trial court provided the jury with a copy of the instructions and read the instructions
in their entirety to the jury prior to the closing arguments . Appellant's counsel and the
Commonwealth's Attorney were free to point out in their closing arguments how the
Intentional Murder, First-Degree Manslaughter, and EED instructions were related .
And, we would note that, as evidenced by the fact that the jury found Appellant guilty of
Assault under EED, the jury understood the application of the EED instruction . Thus,
we do not believe that the jury failed to consider each instruction before rendering its
verdict, nor do we believe that it did not understand how to apply EED to the Intentional
Murder instruction .
C. Appellant's Statements to Police
Appellant next contends that the trial court erred in failing to suppress his
inculpatory statements to the police, which he claims were given while he was under the
17
BLACK'S LAw DICTIONARY 974 (7 t"
ed . 1999).
18 Wellman v. Commonwealth , Ky., 694 S .W .2d 696 (1985) .
19 Id . at 697 .
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influence of alcohol. This error was preserved by Appellant's motion in limine to
suppress the statements ;2° however, we find no merit in Appellant's contention .
In determining the voluntariness of statements obtained from an intoxicated
defendant, "the basic question is whether the confessor was in sufficient possession of
his faculties to give a reliable statement[.], 21
It is only when intoxication reaches the state in which
one has hallucinations or "begins to confabulate to
compensate for his loss of memory for recent events" that
the truth of what he says becomes strongly suspect. 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. "In vino veritas" is an expression that
did not originate in fancy. If we accept the confessions of
the stupid, there is no good reason not to accept those of
the drunk . 22
In the present case, Officer Jeffrey Waters, the only witness to testify at the
suppression hearing, testified that Appellant related to him the amount of alcohol that
he had consumed but refused to take a breath test for alcohol at both the police station
and the detention center. Appellant signed a written acknowledgment of his Miranda 23
rights and was cognizant enough to refuse to give a taped statement. Additionally,
Appellant was able to accurately describe the location of one of the knives he had with
him that evening. Finally, Officer Waters testified that based on his experience as a
police officer and the Appellant's behavior outlined above, Appellant was not under the
"influence of anything" when he made his statements . Based upon Officer Waters's
testimony, the trial court overruled Appellant's motion to suppress his statements .
2°
21
KRE 103(d) .
Britt v. Commonwealth , Ky., 512 S .W .2d 496, 500 (1974).
22
23
Id . (footnote omitted) .
Miranda v. Arizona, 384 U .S . 436, 86 S .Ct. 1602, 16 L .Ed.2d 694 (1966) .
-11-
Although we find that there was sufficient evidence presented at trial to allow a
jury to find that the Appellant was so intoxicated at the time of the stabbing that he did
not know what he was doing, there is no evidence to indicate that his condition
persisted later at the police station where he made his statements to the police.
Accordingly, we hold that since the trial court's ruling was based on substantial
evidence that Appellant was "in sufficient possession of his faculties to give a reliable
statement" and there is no evidence to indicate otherwise, Appellant's statements were
made voluntarily and properly admitted .
D. Directed Verdict Motion
Appellant's final claim of error is that the trial court failed to direct a verdict on the
charges of Intentional Murder and Wanton Murder . We review this claimed error under
the standard articulated in Commonwealth v. Benham :24
On motion for directed verdict, the trial
court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to
induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a
directed verdict should not be given . For the
purpose of ruling on the motion, the trial court
must assume that the evidence for the
Commonwealth is true, but reserv[e] to the jury
questions as to the credibility and weight to be
given to such testimony .
On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable
for a jury to find guilt, only then is the defendant entitled to a
directed verdict.
Ky ., 816 S.W.2d 186 (1991).
25 _Id
. at 187. See also Holland v. Commonwealth , Ky., 114 S.W .3d 792, 809
(2003) ; Commonwealth v. Sawhill , Ky., 660 S .W .2d 3, 4-5 (1983) ("The clearly
unreasonable test seems to be a higher standard for granting a directed verdict . . .
constituting] an appellate standard of review ."); Trowel v. Commonwealth , Ky., 550
S .W.2d 530, 533 (1977).
-1 224
First, we would note that Appellant was not convicted of Intentional Murder, and
therefore, any error in not directing a verdict on that charge is clearly harmless .
Second, "[a] motion for a directed verdict of acquittal should only be made (or granted)
when the defendant is entitled to a complete acquittal, that is, when looking at the
evidence as a whole, it would be clearly unreasonable for a jury to find the defendant
guilty, under any possible theory, of any of the crimes charged in the indictment or of
any lesser included offenses ." 26 Appellant does not contest that the lesser offenses of
First-Degree and Second-Degree Manslaughter were supported by the evidence ; in
fact, his primary argument is that these lesser offenses, instead of Intentional or
Wanton Murder, were the ones appropriate under the evidence and the law. Although
Appellant objected to the Wanton Murder instruction to preserve this claimed error,27 in
light of the evidence in this case, which is set forth in detail above in Part Il, we do not
find that the jury's verdict of Wanton Murder was "clearly unreasonable." Accordingly,
we hold that the trial court properly denied Appellant's motion for a directed verdict .
IV. CONCLUSION
We affirm Appellant's convictions of Wanton Murder, but we reverse his
conviction of Assault under Extreme Emotional Disturbance because of the absence of
an instruction on voluntary intoxication and remand for a new trial on Assault Under
EED .
Lambert, C.J . ; Cooper, Graves, Johnstone and Stumbo, JJ., concur.
Wintersheimer, J., concurs in affirming the Wanton Murder conviction but dissents as to
the reversal and remand of the conviction of Assault Under EED .
26
27
Campbell v. Commonwealth , Ky, 564 S .W .2d 528, 530-31 (1978) .
Id .
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COUNSEL FOR APPELLANT :
Dennis Stutsman
Department of Public Advocacy
Appellate Branch Manager
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General
Samuel J . Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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