Brown v. Com.

• Decision Date: 01 July 1977
• Parties: Mark BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 252

555 S.W.2d 252

Mark BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

July 1, 1977.

Rehearing Denied Oct. 7, 1977.

Jack Emory Farley, Public Defender, Frankfort, Mark A. Posnansky, Asst. Public Defender, for appellant.

Robert F. Stephens, Atty. Gen., Frankfort, Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Justice.

The appellant, Mark Brown, and his brother, James H. (Jim) Brown, III, were jointly indicted for the murder of Bryant Dudley. Cf. KRS 507.020. In a separate trial Mark was found guilty and sentenced to 20 years in prison. He appeals.

The verdict was returned under an instruction directing the jury to find the defendant guilty of murder if it believed beyond a reasonable doubt that (a) he and Jim conspired to kill Dudley, (b) in so doing Mark intended to promote or facilitate Dudley's death, and (c) pursuant to and in execution of that conspiracy and while it existed, Jim killed Dudley by shooting him with a shotgun. ¹ The word "conspiracy" was defined as follows: "A conspiracy occurs when two or more persons agree that at least one of them will engage in conduct which constitutes a criminal offense or attempt to commit an offense."

Mark's counsel objected to the instruction on the conspiracy theory, and one of his principal contentions on this appeal is that the evidence was insufficient to support a finding that there was a conspiracy between Mark and Jim to kill Dudley. He contends also that the trial court erred in denying his request for an instruction on 2d-degree manslaughter (KRS 507.040, which defines this degree of homicide as "wantonly" causing the death of another). Other arguments are that the trial court erred in submitting the case to the jury under an indictment that did not sufficiently charge the offense in question and in failing to instruct on the defense of intoxication under KRS 501.080. Incident to this latter point Mark contends that under the principle of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Commonwealth had the burden of proving his sobriety as a necessary element of the crime of murder, and that in the absence of its having sustained that burden the conviction violated his right of due process. Despite, however, valiant and resourceful advocacy by his appellate counsel we find no merit in any of these points.

In May of 1976 Mark Brown had an apartment on Vine Street in Maysville, though it seems that he also had a room at his mother's home on Jersey Ridge Road. He and his brother Jim were young men and had a circle of friends who visited Mark's living quarters on Vine Street. Mark kept marijuana at the Vine Street apartment, and the evidence suggests that he was regularly engaged in selling it. At some time in April of 1976 Mark noised it about that somebody had "ripped him off" and stolen his supply of "reefers," that he thought Dudley had done it, and that he was going to "bump him off." Having received word of this talk, Dudley went to see Mark and assured him that he was not the guilty party. During this stormy meeting Mark was brandishing a .45-caliber pistol and threatening to shoot Dudley for having stolen the marijuana, but Dudley and Mark's girl-friend were able to get him calmed down and Dudley convinced him, at least temporarily, that he was not the thief.

On Sunday night, May 16, Mark began complaining to his friends that he had been ripped off again, that someone had broken into the apartment and stolen $600 or $700 worth of valuables, and that when he found out who had done it he was going to "blow their head off." On the morning following this break-in (which would be Monday, May 17) a witness named Tolle stopped in to see Mark about an automobile Mark had been wanting to buy, and Mark told him about the robbery and said if he found out who did it he would get even. Mark was extremely angry over the rip-off. On this occasion Robert Collins also was present at the apartment, and Tolle heard Collins tell Mark that he had come up there the night before and found no one at home, but had seen Dudley either on the porch or walking down the street in front of the house.

Later on during this same day (Monday, May 17) Robert Collins was riding around in an automobile with Mark, Jim and Dudley. During this ride Mark and Jim were asking Dudley if he had stolen the drugs and Mark was pointing a .45-caliber pistol in the general direction of Dudley. Dudley, incensed, denied it and said, "This is the second time you all have had me out questioning me about something like this and had a gun in my face. If you don't quit doing it, I am going to have both of you killed." At this development Collins became apprehensive and insisted that he be taken back to his own car, after which he went home.

On Tuesday, May 18, Mark told Ricky Bellew that someone had broken into his house and stolen some drugs, and he was going to "get them." During this conversation, in the course of discussing whether he knew who had done it, Mark indicated that he suspected Dudley or some other individual he did not name.

At some time around 10:30 to 11:00 P.M. of May 18 Chan Warner and Earl Black, friends of the Browns, were standing on the street in Maysville when Mark and Jim drove up in Jim's car and asked if they had seen Dudley. Warner told them that he thought Dudley was at the home of his (Dudley's) girl-friend, Anna (Pete) Corde. Either Warner or Black asked the Browns "if they had anything to get high on," to which Mark replied in the negative and explained that he "had gotten ripped off of everything he had," referring to marijuana. During this discussion Mark said he knew who had done it and that he was going to "get them." He did not, however, say that Dudley was the suspect to whom he was referring.

Anna Corde testified that Dudley had been at her home all during the evening of Tuesday, May 18, until about 10:00 or 10:30 P.M., when Mark Brown came to the door and asked for him. Dudley, who was scantily attired, put on some more clothes and told Anna he was "going up to Mark's to do some chemicals" (to "get high") and would be back in 15 minutes to half an hour. She never saw Dudley again.

Except for Mark and Jim Brown, neither of whom testified, the last persons known to have seen Dudley alive were four boys who came to Mark's apartment between 11:30 and 12:00 P.M. on Tuesday, May 18, and remained there about 15 minutes. When they arrived, Mark and Dudley were in the kitchen and, according to one of the visitors, were "snorting" something into their nostrils and staggering around. Dudley in particular was "pretty messed up." Jim was in the living room and "didn't appear to be messed up." Jim mentioned that he was about to go to Lexington, so the visitors departed.

Between 3:00 and 3:30 A.M. on Wednesday, May 19, Mark and Jim Brown arrived at an apartment in Lexington occupied by four of Jim's friends, where they slept on a couch for the rest of the night.

Later in the day after the Browns had awakened they sat around and listened to some records and then at some time after noon returned to Maysville. At one point during this visit Mark went out to his brother's car and fired a shotgun, explaining afterward that he wanted to check the safety mechanism of the gun and found that it "didn't work." Also during this sojourn in Lexington, at Jim's instance one of the other boys traded a shirt and a pair of boots with him. ²

On Thursday afternoon, May 20, Jim Burden and Darrell Davis were in Mark's apartment and heard a conversation in which Mark, referring to the recent theft, "said he knew who it was and that it was a black person, ³ and that it was taken care of." Later on that night Davis heard that Dudley was missing.

Robert Collins, who evidently enjoyed Mark's confidence, ⁴ testified that on Friday, May 21, Mark called him on the telephone and told him that he (Mark) and Jim had been riding around with Dudley and had stopped out on Morton's Lane; that while they were questioning Dudley at that place Jim became "hostile" and shot Dudley with both barrels of a shotgun; and that he (Mark) had either shot or shot at Dudley a couple of times with a .45. That night, which Collins says was "between Friday night and Saturday morning . . . early in the morning," Collins accompanied Mark out to Morton's Lane in order to help him find Dudley's body and bury it. According to Collins, Mark looked along the side of the road but was not able to find the body.

At some time before Dudley's body was found Collins repeated the substance of the above described conversation with Mark to William Castle, who so testified.

On May 26, after being advised of his rights, Mark submitted to an interrogation by Detective William Lewis, of the Kentucky State Police. He admitted that he and Jim had brought Dudley to his apartment on the night of May 18 and that he and Dudley had sat in the kitchen and snorted some "angel dust," which he described as a "mixture of drugs, left-overs, more or less." Afterward, he said, Dudley and Jim helped him make up a bed in the bedroom and then Dudley left. Mark and Jim then went on to Lexington and Mark had not seen Dudley since. He denied knowing Dudley's whereabouts or having had anything to do with his disappearance.

Dudley's body was found just off Morton's Lane on May 27. He had been shot twice in the back with No. 6 shot from a .12-gauge shotgun. The pieces of wadding found in the body had come from Federal brand shotgun shells. No .45-caliber bullets were located, but two .45-caliber shell casings were found near the road. The weapon from...