Brock v. Com.

• Decision Date: 30 January 1997
• Docket Number: No. 94-SC-1001-MR,94-SC-1001-MR
• Parties: Boyd Allen BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 24

947 S.W.2d 24

Boyd Allen BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-1001-MR.

Supreme Court of Kentucky.

Jan. 30, 1997.

Barbara C. Carnes, Barbourville, for appellant.

A.B. Chandler, III, Attorney General, Karen Quinn, Criminal Appellate Division, Office of Attorney General, Rickie L. Pearson, Criminal Appellate Division, Office of Attorney General, Frankfort, for appellee.

COOPER, Justice.

On May 4, 1994, Appellant Boyd Allen Brock killed Bill "Doc" Partin by shooting him with a 9-mm semiautomatic pistol. Appellant asserts he killed Partin in self-defense. Following a trial by jury, Appellant was convicted of first-degree manslaughter and sentenced to confinement in the penitentiary for twenty years. He appeals to this Court as a matter of right. Ky. Const., § 110(2)(b).

I. MOTION FOR DIRECTED VERDICT

Since Appellant's first claim of error is that he was entitled to a directed verdict of acquittal, it is necessary to summarize the facts leading up to Partin's death.

The first relevant confrontation between Appellant and Partin occurred on April 19, 1994 when Partin came to Appellant's home and accused him of killing two of Partin's hunting dogs. Partin was intoxicated and armed with a handgun at the time. Appellant managed to disarm Partin and gave the weapon to Partin's nephew, Kevin Smith, who had arrived on the scene after receiving a call from Appellant's wife. Before leaving with Smith, Partin threatened Appellant with bodily harm if another of Partin's dogs should be killed.

On May 4, 1994, Appellant, his wife and their four children were in a vehicle traveling away from their home when they encountered Partin's truck stopped on a one-way bridge near Appellant's home. Appellant was unsure whether Partin's vehicle was stalled and he needed help, or whether Partin intended to carry out his previous threat. Appellant backed his vehicle into an adjacent driveway on property owned by his niece, Denise Knuckles. Appellant's wife removed a 9-mm semiautomatic pistol and an extra clip from the glove compartment and handed them to Appellant. Appellant then got out of the vehicle and directed his wife to return home with the children. Appellant took cover behind a nearby building on Knuckles' property.

Meanwhile, Partin had left his vehicle and began advancing toward Appellant's position armed with a .38 caliber revolver. Appellant claims Partin fired first and that he responded with a burst from his 9-mm semiautomatic; that Partin went down and fired back from the ground; that Appellant returned fire; that Partin fired again from his position on the ground; and that Appellant again returned fire, ultimately inflicting the fatal wounds. An eyewitness, Paul Green, testified that he could not see Appellant, but that he did see Partin leave his vehicle and walk toward Knuckles' property. Green then heard an automatic weapon fire about three times, following which he saw Partin return fire. Green first testified that Partin's arms were at his side when he heard the shots from the automatic weapon. Later, he testified that Partin's arm appeared to be coming around when the first shots were fired. The remainder of Green's testimony is consistent with Appellant's version. After firing his weapon, Partin fell to the ground and fired again. Green then heard a second round of automatic weapon fire. Partin fired again, following which there was a third round of automatic weapon fire. Appellant then came to Green's house and stated, "Paul, call an ambulance, I had to do it."

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 reserving to the jury questions as to the credibility and weight to be given to such testimony.

Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).

Although the Commonwealth has the burden of proof, it does not have to rebut evidence of a defense. KRS 500.070(1). The defendant is not entitled to a directed verdict of acquittal, unless the defense is conclusively established. West v. Commonwealth, Ky., 780 S.W.2d 600 (1989).

It is only where evidence for a defendant conclusively establishes justification that he is entitled to a directed verdict.... If the testimony relied on to establish self-defense is contradicted or if there is evidence of any fact or circumstance from which a jury could reasonably conclude that some element of self-defense was lacking, a directed verdict should not be given.

Townsend v. Commonwealth, Ky., 474 S.W.2d 352, 353-354 (1971). See also, Stepp v. Commonwealth, Ky., 608 S.W.2d 371, 373 (1980); Wheeler v. Commonwealth, Ky., 472 S.W.2d 254, 256 (1971).

The fact that Partin threatened Appellant fifteen days prior to the shooting was a factor for the jury to consider, but did not entitle Appellant to a directed verdict of acquittal. "A threat of violence seriously made does not in and of itself justify the man threatened in killing the one who made it, because the threat alone does not put the threatened party in imminent danger." Davidson v. Commonwealth, 261 Ky. 158, 87 S.W.2d 119, 122 (1935). Such threats "may help the jury ... in determining the good faith of the accused in arriving at his asserted belief of impending danger." Id.

Appellant relies on Taul v. Commonwealth, Ky., 249 S.W.2d 45 (1952) for the proposition that, ordinarily, a defendant must prove his claim of self-defense unless the evidence presented by the prosecution shows a state of facts justifying the act. However, in Taul, we also stated:

The mere fact that a man says he killed another in self-defense, or describes events which show that to be the case, does not have to be accepted at face value where the jury may reasonably infer from his incredibility or the inherent improbability of his own testimony, or all the revealed circumstances, that one or more of the several factors that qualify or enter into the legal right of self-defense were missing. Among these are reasonableness of the defendant's belief of imminent danger of great bodily injury or loss of life, the necessity or reasonable judgment of necessity to shoot to avert that danger, real or apparent, and the absence of aggression by the defendant.

Id. at 47-48.

The evidence does not conclusively establish justification. Appellant had ample opportunity to avoid the confrontation. In fact, after Appellant got out of his vehicle, his wife was able to safely drive herself and their children away from the scene. Considering the history between Appellant and Partin and the manner in which Appellant armed himself and sent his family to safety, it was reasonable for the jury to conclude that Appellant intended to violently confront Partin. Paul Green's testimony that Appellant shot first from behind a building while Partin's arms were at his side sufficed to support a finding by the jury that Appellant was the initial aggressor and did not kill Partin in self-defense.

II. DISMISSAL OF DEFENSE WITNESS

On the first day of the trial, the trial judge dismissed defense witness Lowell Partin, the victim's brother, after Lowell complained that he was missing work and had no information to offer which would be helpful to the defense. The trial judge permitted defense counsel to question Lowell Partin in chambers in what amounted to an avowal. During this questioning, Lowell Partin denied knowing that Bill "Doc" Partin had pulled a gun on two other persons prior to the shooting. He also denied having had a telephone conversation with his mother, Della Partin, in which they discussed Bill "Doc" 's drunken state, that someone needed to keep beer from him, that he was going crazy, and that he was dangerous. Defense counsel proposed to impeach Lowell Partin with a tape recording of a telephone conversation between him and his mother in which he is alleged to have made a prior inconsistent statement.

In Kentucky, a prior inconsistent statement is used not only to attack the credibility of the declarant, but also constitutes substantive evidence with respect to the matter asserted. KRE 801A(a)(1); Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). A statement is inconsistent for purposes of KRE 801A(a)(1) whether the witness presently contradicts or denies the prior statement, or whether he claims to be unable to remember it. Wise v. Commonwealth, Ky.App., 600 S.W.2d 470, 472 (1978). Since Lowell Partin had offered no direct evidence relevant to any issue in this case, Appellant's sole purpose in attempting to confront him with his prior recorded statement was not to attack his credibility, but to introduce the recording as direct evidence in support of his claim of self-protection, i.e., substantive evidence for the defense. Thus, the statement is subject to scrutiny for relevance. Appellant asserts that the statement was relevant to prove Bill "Doc" Partin's state of mind on the date of the shooting. However, the telephone conversation between Lowell Partin and Della Partin occurred at 4:00 p.m. on April 22, 1994, twelve days before the shooting took place. The trial judge found that Lowell Partin's observations of Bill "Doc" 's demeanor on April 22, 1994 did not tend to prove Bill "Doc" 's state of mind when the shooting took place twelve days later. KRE 401.

We need not address the relevancy/remoteness issue head on, or even determine whether the proffered evidence was accompanied by the minimum foundation requirements of KRE 701 necessary to qualify Lowell Partin to express an opinion concerning Bill "Doc" 's state of mind on April 12, 1994. See generally Robert G. Lawson, The Kentucky Evidence Law Handbook, § 6.05 (3rd Ed., Michie,...