Campbell v. Commonwealth, No. 2006-SC-000931-MR (Ky. 3/19/2009)
| Decision Date | 19 March 2009 |
| Docket Number | No. 2006-SC-000931-MR.,2006-SC-000931-MR. |
| Parties | Frank S. CAMPBELL, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Samuel N. Potter, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of Attorney General, Frankfort, KY, Counsel for Appellee.
Not to be Published
This is a matter of right appeal from a judgment in which Appellant was convicted of complicity to second-degree assault, complicity to first-degree sexual abuse, and for being a persistent felony offender in the second degree ("PFO II") in connection with ajailhouse assault of a fellow inmate. Appellant argues that he was erroneously denied an instruction on complicity to fourth-degree assault, the sexual abuse instruction failed to contain the element of intent, the Commonwealth was improperly permitted to impeach its witness on a collateral issue, and photographs of the victim's injuries after surgery were improperly admitted. We reject all four claims of error and thus affirm.
On December 2, 2004, Coy McClain was lodged in the Letcher County Jail with Michael Fugate, Robert Fields, David Lucas, and Appellant, Frank Campbell. All five men were assigned to Cell 121, which consisted of a common area surrounded by smaller lockdown cells. While incarcerated, McClain played cards with the other four men. One afternoon, McClain stepped into a lockdown cell to ask about playing cards again when Lucas slammed the door behind him, leaving him locked in a cell with Campbell, Fugate and Lucas. According to McClain, once locked in the cell, the three men began hitting him about the head, face, neck, and chest. At one point, Lucas pulled down McClain's pants and underwear and threatened to "f [him] in the hind end." While this was taking place, Campbell was sitting on a bunk with his penis exposed talking about McClain performing oral sex on him (Campbell). Fugate and Lucas then shoved McClain's head towards Campbell's penis. McClain testified that the whole time he was screaming and struggling, but Fields was making noise outside the cell and turned the television set to a high volume. McClain also recounted that Fields was looking into the cell through a window, pointing and laughing at McClain.
McClain testified that, although he did not actually perform oral sex on Campbell, his face came into contact with Campbell's penis. After more than three hours locked in the cell, McClain was able to leave the cell when control booth opened the door to the cell for an unrelated reason. However, according to McClain, the four men threatened to kill him if he tried to alert anyone about the assault and they prevented McClain from getting the guard's attention.
Sometime after the assault, McClain wanted a cigarette and had to go back into the cell to retrieve his cigarettes that he had dropped. Again the door slammed behind him and this time Fields began beating him about the head and neck area. Fields also exposed his penis, rubbed it across McClain's face and tried to force McClain to perform oral sex on him. After four hours in the cell, McClain was able to exit the cell and inform the guards at the jail what had happened.
McClain was taken to the hospital where x-rays were taken of his jaw. McClain was told by the hospital that nothing was broken and he was taken back to jail. After he was released from jail later that day, McClain immediately went to the office of the county attorney to report his assault. The next day, McClain went to both a local clinic and the emergency room at Jenkins Community Hospital. A CT scan of his face revealed a fractured mandible. McClain was referred to a specialist at the University of Kentucky. McClain ultimately had to have surgery on his jaw.
On April 14, 2005, Campbell was indicted on charges of complicity to second-degree assault, criminal attempt to commit first-degree sodomy, and PFO II. Fields, Fugate and Lucas were likewise indicted for the assault and sexual abuse of McClain. After ajury trial on May 1-8, 2006, wherein all four defendants' cases were consolidated, Campbell was convicted of complicity to second-degree assault, complicity to first-degree sexual abuse, and PFO 11, for which he was sentenced to a total of thirty (30) years. This appeal by Campbell followed.
Campbell argues that the trial court erred in refusing to instruct the jury on the lesser included offense of complicity to fourth-degree assault. It is the duty of the trial court to instruct the jury on every theory of the case deducible from the evidence. Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (citing Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000)); RCr 9.54(1). While that duty includes instructions on any lesser included offenses which are supported by the evidence, that duty does not require an instruction on a theory with no evidentiary foundation. Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998) (citing Barbour v. Commonwealth, 824 S.W.2d 861, 863 (Ky. 1992), overruled on other grounds by McGinnis v. Commonwealth, 875 S.W.2d 518 (1994)). "An instruction on a lesser-included offense is required only if, considering the totality of the evidence, the jury could have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Baker v. Commonwealth, 103 S.W.3d 90, 94 (Ky. 2003) (citing Clifford v. Commonwealth, 7 S.W.3d 371, 377-78 (Ky. 1999)). A trial court's rulings on instructions are reviewed under an abuse of discretion standard. Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citing Johnson v. Commonwealth, 134 S. W.3d 563, 569-70 (Ky. 2004)).
A person is guilty of second-degree assault if he intentionally causes a serious physical injury to another person. KRS 508.020(1)(a). A person is guilty of fourth-degree assault if he intentionally or wantonly causes a physical injury to another person. KRS 508.030(1)(a). Under KRS 500.080, a "physical injury" is defined as "substantial physical pain or any impairment of physical condition." "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any `bodily organ." KRS 500.080(15).
Dr. Richard Pollick, the surgeon who performed McClain's surgery, testified that when he first examined McClain, he could not close his jaws together, he had limiting opening of the mouth, the jaw area was swollen and painful, and his jaw made crunching and popping sounds when he moved it. A CT scan and Panorex x-ray revealed a fracture of the condyle, the hinge-like bone at the upper end of the jaw, and a severely dislocated jaw. On December 15, 2004, Dr. Pollick performed a 2 ½-hour "open reduction" surgery to repair the jaw which required multiple incisions and a titanium plate and screws to secure the bone. Dr. Pollick testified that, even though he was reasonably pleased with the outcome of the surgery, due to the severity of the fracture and the complexity of the surgery, McClain was nevertheless at high risk for long term effects such as malocclusion, arthritis, facial paralysis, and jaw pain.
McClain testified that it took him 14-15 months to recuperate from the surgery and that he may have to have one or two more surgeries., When asked if he was now the same as before the injury, McClain testified that he was not, that his face is crooked, his jaw did not line up right, he could not eat properly and he was in constant pain.
Campbell relies heavily on Rowe v. Commonwealth, 50 S.W.3d 216 (Ky.App. 2001), in support of his argument that McClain's injury was not shown to be, as a matter of law, a "serious physical injury." Thus, he was entitled to a complicity to fourth-degree assault instruction so that the jury could decide the seriousness of the injury.
In Rowe, as in the present case, the victim was struck by the defendant in the mouth area. Rowe, 50 S.W.3d at 218. The victim in Rowe suffered a chin fracture and lost four teeth. Id. at 218-19. As a result, the teeth had to be reset using an arch bar. Id. The victim's treating physician testified that the prognosis was extremely good for the teeth and the healing of the fracture, although the doctor recognized that there was still the risk of losing teeth, infection, and nonunion of the fracture. Id. at 220. While the victim testified to what he endured during the healing period, he did not testify to any lasting effects from the injury or surgery. Id. at 219. The Court of Appeals held that because the proof established that the injury was treated successfully and there was no substantial risk of death, the trial court erred in failing to instruct the jury on both second-degree and fourth-degree assault. Id. at 221.
There is no question here that the injury to McClain did not create a substantial risk of death. Thus, the issue is whether the proof was sufficient to establish, as a matter of law, that the injury caused "serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ." We believe that it was and that the case is distinguishable from Rowe.
Dr. Pollick testified that the fracture and dislocation of McClain's jaw was so severe that it required a long and complex surgery involving metal plates and screws. Despite the surgery, Dr. Pollick stated that McClain was still at high risk for malocclusion, arthritis, facial paralysis, and jaw pain. Most significant was McClain's own testimony that as a result of the injury, his face is now crooked, he cannot eat...
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