793 S.W.2d 802 (Ky. 1990), 88-SC-45, Harris v. Commonwealth

Docket Nº88-SC-45-MR.
Citation793 S.W.2d 802
Opinion JudgeSTEPHENS, Chief Justice.
Party NameJohn Anthony HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
AttorneyJ. David Niehaus, Deputy Appellate Defender, Jefferson Dist. Public Defender, Louisville, for appellant. Frederic J. Cowan, Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Frankfort, for appellee.
Judge PanelSTEPHENS, C.J., and COMBS, GANT, LAMBERT and WINTERSHEIMER, JJ., concur. LEIBSON, Justice, dissenting.
Case DateMarch 15, 1990
CourtSupreme Court of Kentucky

Page 802

793 S.W.2d 802 (Ky. 1990)

John Anthony HARRIS, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-45-MR.

Supreme Court of Kentucky

March 15, 1990

As Modified on Denial of Rehearing Sept. 6, 1990.

Page 803

J. David Niehaus, Deputy Appellate Defender, Jefferson Dist. Public Defender, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant, John Anthony Harris, was convicted of kidnapping, wanton murder, tampering with physical evidence, and abuse of a corpse. He received these sentences: life without possibility of parole for 25 years for the kidnapping; life imprisonment for murder; five years' imprisonment for tampering; and 12 months and a $500 fine for abuse of a corpse. He appeals his conviction as a matter of right. We affirm.

Testimony at trial was that the appellant planned on "playing a joke" on Sabra Ann Diamond and invited James Timothy Elmore to join him. Testimony established that appellant and Elmore planned to stop Ms. Diamond's car and shoot a gun into the air to scare her. On the night of April 8, 1986, the pair followed her in a car driven by Elmore. They stopped her on a deserted road by blocking her car with Elmore's car. Carrying a loaded, cocked pistol, appellant approached her car on the driver's side. Ms. Diamond refused to speak with him. The appellant then pointed the pistol at the victim's head, and she opened the car door and "lunged" out at him. When she reached for the gun appellant pulled the trigger. The victim died from a gunshot wound to the head.

Appellant confessed that he and Elmore placed Ms. Diamond's body in Elmore's car. They drove to LaGrange and dragged the victim's body into the woods, where appellant removed her clothes and covered the corpse with leaves. There was evidence that the corpse was subjected to sexual intercourse. Elmore testified that he observed appellant commit the act. Appellant took the victim's purse from her car. The police determined that a small amount of money was missing from her purse. As a result, appellant was also charged with robbery and tampering with physical evidence..

Page 804

The jury acquitted him on the robbery charge.

Appellant presents eight assignments of error. We will address them in the order presented in his brief.

First, appellant claims that his confession to the police should have been suppressed because it was obtained in the absence of counsel after he had repeatedly requested a lawyer. The trial judge held an evidentiary hearing pursuant to RCr 9.78 and found that Harris's statement was given voluntarily and that his claim of a request for counsel was not credible. The record shows that the trial court's ruling is supported by substantial evidence, and its factual findings are therefore conclusive. RCr 9.78; Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921 (1986), cert. denied, 484 U.S. 970, 108 S.Ct. 468, 98 L.Ed.2d 407 (1987). The motion to suppress appellant's confession was properly overruled.

Appellant next claims that it was error for the trial court to instruct the jury on wanton murder, because there was insufficient evidence from which the jury could conclude that he acted under "circumstances manifesting extreme indifference to human life," as required by KRS 507.020(1)(b). Appellant failed to preserve this issue by making a specific objection. RCr 9.54(2); Commonwealth v. Duke, Ky., 750 S.W.2d 432 (1988). Even if appellant had properly preserved this allegation of error, his argument is without merit. The record shows that the evidence was sufficient to support the wanton murder instruction: appellant was carrying a loaded, cocked pistol, and admitted intent to point it at the victim but did not admit intent to cause her death. Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984). The wanton murder instruction was proper.

The next series of alleged errors involves the propriety of appellant's kidnapping conviction.

Appellant argues that a capital offense was neither alleged nor proved, with respect to kidnapping. His argument has two prongs. First, he claims that the language of the indictment did not properly charge a capital offense. Second, he complains that the kidnapping instruction given at the close of the guilt/innocence phase of trial failed to require proof of the victim's death.

As to the first argument, appellant correctly states that kidnapping is a capital offense when the victim is not released alive. KRS 509.040(2). Appellant argues that since the indictment did not specifically allege that Ms. Diamond was not released alive, capital kidnapping was not alleged. Appellant favors form over substance. The record shows that count one of both the original indictment and an amended version stated that kidnapping was being charged as a capital offense. Count two stated that the victim suffered death. Both the capital proceeding notice and the bill of particulars noted that the kidnap victim died as a result of the appellant's actions. We hold, therefore, that the appellant was not misled by the indictment as to the penalty and its basis. Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). The indictment was sufficient. RCr 6.12; Howard v. Commonwealth, Ky., 554 S.W.2d 375 (1977).

We find appellant's second argument to be a curious one. At trial, defense counsel argued against instructing the jury on capital kidnapping, and the record shows that no capital kidnapping instruction was given in the guilt/innocence phase. Yet appellant now complains that the kidnapping instruction submitted to the jury at the close of evidence did not require proof of the victim's death. This is the very element that enhances kidnapping to a capital offense. Appellant attempts to assign error to the granting of the very relief he...

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