Gill v. Com.
| Decision Date | 21 October 1999 |
| Docket Number | No. 96-SC-0405-MR.,96-SC-0405-MR. |
| Citation | 7 S.W.3d 365 |
| Parties | Eric GILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Lisa Bridges Clare, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.
A.B. Chandler, III, Attorney General of Kentucky, Matthew D. Nelson, Michael Harned, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for Appellee.
Eric Gill was convicted of murder and first-degree robbery. He was sentenced to life without the possibility of parole for twenty-five years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We affirm.
This is a sad case of brutal and senseless murder. Gill and a number of other teenagers plotted to lure Brad Johnson to an abandoned rock quarry in order to tie him up and steal his car. The plot evolved to include a scenario in which Brad was murdered. The teenagers wanted to steal the car so that they could drive to Florida.
By his own account, Gill and Brad had been friends for a number of years. This friendship was critical to luring Brad to the rock quarry. First, Gill invited Brad over to his house. Then, on the pretext of picking up a stranded friend, Gill helped trick Brad into driving him, Jim Dunn (Gill's co-defendant at trial), and one Jamie Salyers to the rock quarry, which they called Devil's Canyon. Gill took with him to the rock quarry a duffle bag packed With clothes for Florida. Upon arriving at the rock quarry, Gill, Dunn, and Salyers led Brad along a foot path that led to the top of the quarry, purportedly to look for their stranded friend.
At the top of the quarry, Dunn tricked Brad into giving him the keys to the car. Once he had Brad's keys, Dunn shoved Brad toward the sheer edge of the quarry. Brad managed to stop himself on the slope leading to the edge. As he was climbing back toward the top, back to safety, he became fearful and asked Dunn, "I am going to die, aren't I?"
Dunn did not respond. Instead, he asked Gill, "Are you going to help me?" Gill testified that he understood Dunn to Bean whether Gill was going to help him murder Brad.
When he was almost back up the slope, Brad grabbed Gill's leg. According to Salyers' testimony, Gill and Dunn both picked up Brad and again propelled him toward the sheer edge of the quarry. According to Gill, Dunn alone pushed Brad back toward the seventy-five foot drop. In any event, Gill did not help Brad nor did Brad fall off of the edge of the quarry. Instead, he managed to grab hold of a sapling.
Determined to finish the job, Dunn and Gill threw sticks, branches, and rocks at Brad until they finally forced him to lose his grip and fall to the quarry floor. Dunn and Gill then walked to a vantage point where they could view their handiwork and discovered that Brad still lived. Dunn and Gill left Salyers at Brad's car and walked to the bottom of the quarry. Both Dunn and Gill threw rocks at Brad's head, one of which finally ended Brad's short life.
After Brad was dead, Gill rifled through Brad's clothes, retrieved his wallet, removed twenty-one dollars, and then pitched the wallet aside. Instead of going to Florida, Gill and Dunn went to North Carolina, where they stayed briefly and then returned to Kentucky. When they learned that the authorities where looking for them in connection with Brad's murder, they drove Brad's car to a strip mine and set it afire. The two were arrested shortly thereafter. Dunn quickly confessed to the murder and robbery. However, Dunn did not testify at trial.
Gill moved in limine to suppress the introduction of Dunn's confession, which clearly implicates Gill as a participant in the murder and robbery. Gill argued that introduction of the statement would violate his Sixth Amendment right of confrontation as established in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Commonwealth responded that, because Dunn's statement was sufficiently corroborated by other evidence, the statement was admissible under the statement against penal interest exception to the hearsay rule. See Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990), cert denied, 502 U.S. 1100, 112 S.Ct. 1185, 117 L.Ed.2d 428 (1992). The trial court found that Dunn's statement was sufficiently corroborated and denied Gill's motion to suppress. As a result of this ruling, Dunn's unredacted confession was admitted as substantive evidence against both Dunn and Gill.
At oral argument, the Commonwealth all but conceded that introduction of Dunn's confession violated Bruton. Further, rather than defending Taylor and the trial court's ruling, the Commonwealth argued that introduction of the confession was harmless error. We agree with the Commonwealth that if Dunn's statement was admitted in error, it was harmless beyond a reasonable doubt. However, while we decline to reach the issue of whether Dunn's confession was admissible as an exception to the hearsay rule under Taylor, we note that the continued viability and constitutionality of Taylor on this point has been called into serious question by the U.S. Supreme Court's recent 7-0 decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).
Violation of the Bruton rule is subject to the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which holds "that before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt." See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284, 288 (1969); see also Cosby v. Commonwealth, Ky., 776 S.W.2d 367, 370 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).
The murder instruction for Gill reads:
You will find the Defendant, Eric Gill, guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that ... he, alone or in complicity with James Dunn intentionally killed Brad Johnson by pushing him from a cliff, knocking him from a tree and/or throwing a rock(s) at his head.
The definition of "complicity" included in the instructions reads:
Complicity — Means that a person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits, commands, or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such other person in planning or committing the offense.
Upon review of the entire record, we can state with confidence our belief that the evidence against Gill was so overwhelming that the admission of Dunn's statement was harmless beyond a reasonable doubt.
Even if we cast aside the number of witnesses who testified that Gill participated in the plan to lure Brad to the rock quarry, the witness who testified that Gill admitted before the murder that he and Dunn planned to kill Brad and the eyewitness testimony that Gill helped Dunn throw Brad toward the edge of the sheer drop of the quarry, there still remains Gill's own damning words. Gill admitted to participating in the plot to rob Brad and admitted these discussions included plans to murder Brad. Gill admitted to throwing a big log at Brad while he was hanging onto a sapling at the edge of the sheer drop of the quarry. Gill admitted to throwing a softball-sized rock at Brad's head while he lay helpless and battered on the rock quarry floor. Gill admitted to taking Brad's wallet from his dead body and then taking twenty-one dollars from it. In addition, Gill testified as follows:
Q. And then I think you said on direct that Jim Dunn says to you are you going to help me, right?
Gill: Yes.
Q. So at that point you knew that he was talking about killing Brad?
Gill: Yes.
* * * * *
Q. You said ... that you realized at the time that Brad is crawling back up and says, "I am going to die aren't I," and Jim Dunn asked you to help him[,] you knew the object at that time was to kill Brad?
Gill: Yes.
Q. And after that is when you started helping Jim Dunn, right?
Gill: That is when I threw the stick, yes.
* * * * * *
Q. Then you say when you all got back in the car after Brad was murdered[,] that Jim Dunn said what about being a natural born killer?
Gill: He said now you know what it feels like.
Q. He said that to you?
Gill: I am guessing, yes.
Q. Because you had participated in killing him, right?
Gill: Yes.
On appeal, Gill makes much of the fact that Dunn in his confession states that it was Gill who threw the rock that struck the fatal blow. Whereas, Gill testified that it was Dunn who threw the fatal rock. Clearly under the instructions given, the jury's verdict does not turn on who struck the actual fatal blow. When two like-minded souls conspire to set a fire, it does not matter who throws the gasoline and who strikes the match. See State v. Crepeault, 126 Vt. 338, 229 A.2d 245, cert. denied, 389 U.S. 915, 88 S.Ct. 249, 19 L.Ed.2d 267 (U.S.Vt.1967). In this case, where two like-minded souls are complicit in combining their efforts to kill, it does not matter who struck the fatal blow.
In addition to the above, Gill argues that the trial court erred in granting his motion for a separate trial because he and Dunn had antagonistic defenses and because the jury would likely confuse the evidence against him and Dunn, thereby painting Gill with the same brush as Dunn. A trial court's decision to deny a motion for separate trials is reviewed for abuse of discretion. Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 887 (1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993). Upon review of the record, we conclude that the trial court did not abuse its discretion in denying the motion for separate trials on the...
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