Harper v. Com., 1999-SC-0935-MR.

• Decision Date: 26 April 2001
• Docket Number: No. 1999-SC-0935-MR.,1999-SC-0935-MR.
• Citation: 43 S.W.3d 261
• Parties: Tamara HARPER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

43 S.W.3d 261

Tamara HARPER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 1999-SC-0935-MR.

Supreme Court of Kentucky.

April 26, 2001.

John Palombi, Misty Jenine Dugger, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A.B. Chandler III, Attorney General of Kentucky, Michael G. Wilson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

JOHNSTONE, Justice.

Appellant, Tamara Harper, was convicted of complicity to murder and complicity to first-degree robbery. She was sentenced to twenty years' imprisonment on the murder charge and ten years' imprisonment on the robbery charge, with the sentences ordered to be served concurrently. She appeals to this Court as a matter of right. We reverse and remand.

Scott Phillips rode with a friend, Mike Randolph, to a river boat casino in Illinois on or about August 31, 1996. They arrived at about 2:30 p.m. Phillips had better luck at cards than Randolph who quit gambling and drove home around 1:15 a.m. the next morning. Phillips stayed on the boat. Sometime after Randolph left, Phillips met Harper on the boat and made the mistake of asking her for a ride home.

Harper had driven her car to the boat taking with her three other persons: Enos Burden, Kevin Platt, and George Vanover. Harper asked one or more of her companions if it was okay for her to give Phillips a ride. The five of them — Harper, Burden, Platt, Vanover, and Phillips — left the casino together with Harper driving. During the drive from the casino, Burden and Phillips got into an argument. Harper stopped the car and Burden and Phillips got out of the vehicle.

During the course of the argument, Burden pulled out a pistol he had been given earlier by Vanover. Phillips dared Burden to shoot him. Vanover urged Burden to shoot Phillips. Burden then shot and killed Phillips. Thereafter, Vanover searched Phillips' clothes and removed his wallet. Upon returning to the car, he distributed cash from the wallet to everyone in the car, including Harper who had remained in the driver's seat and Platt who had been passed out drunk most of the time.

Harper, Burden, Platt, and Vanover were all charged with murder and robbery and/or acting as an accomplice to these crimes. Platt pled guilty to first-degree robbery and hindering prosecution and received a sentence of ten years' imprisonment. Vanover pled guilty to murder and first-degree robbery and received a life sentence. Harper claimed innocence and only she was tried in connection with Phillips' murder. At trial, she presented an alibi defense. Both Platt and Vanover testified against Harper pursuant to their plea agreements. Burden, who had a long history of mental illness, was found incompetent to stand trial and did not testify at Harper's trial.

I. FAILURE TO INSTRUCT ON ALL ELEMENTS OF COMPLICITY

Harper argues that the trial court erred by failing to include a necessary element in the complicity to murder and first-degree robbery instructions. Specifically, Harper argues that the trial court failed to include the element of intent in its instructions. We agree and therefore reverse.

The trial court and counsel went over the instructions at length in chambers. During these discussions, both the trial court and the prosecutor emphasized that the theory of complicity liability at issue in the instructions was premised on subsection (1) of KRS 502.020, which provides in pertinent part:

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:

(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or

(b) Aids, counsels, or attempts to aid such person in planning or committing the offense ....

(Emphasis added).

The language of KRS 502.020(1) and the accompanying commentary make clear that intent is an essential element to a conviction under subsection (1) of the statute. "To be guilty under subsection (1) for a crime committed by another, a defendant must have specifically intended to promote or facilitate the commission of that offense. This means that the statute is not applicable to a person acting with a culpable mental state other than `intentionally.'" KRS 502.020, Official Commentary (emphasis added). Thus, the "[i]ntention to promote or facilitate the charged offense is what must be proved for conviction under KRS 502.020(1)...." Robert G. Lawson and William H. Fortune, Kentucky Criminal Law § 3-3(b)(3) (Lexis 1998) (emphasis in original). Therefore, we hold the trial court erred by failing to include the element of intent in the complicity instructions. See Carpenter v. Commonwealth, Ky., 771 S.W.2d 822, 825 (1989); Watkins v. Commonwealth, Ky., 298 S.W.2d 306 (1957), which both hold that, where intent is an essential element of the offense, failure to instruct on it is reversible error.

The trial court instructed on the complicity to murder charge in pertinent part:

You will find the Defendant ... Guilty of Complicity to Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A.... Enos Burden killed Richard Scott Phillips by shooting him with a gun;

B. That in so doing, Enos Burden caused the death of Richard Scott Phillips intentionally;

AND

C. That prior to the shooting of Richard Scott Phillips the Defendant ... had solicited, commanded, or engaged in a conspiracy with Enos Burden to commit the offense or aided, counseled, or attempted to aid Enos Burden in planning or committing the offense.

Likewise, the trial court instructed on the complicity to first-degree robbery charge in pertinent part:

You will find the Defendant ... Guilty of Complicity to Robbery under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A.... George Vanover stole money from Richard Scott Phillips;

B. That in the course of the theft and with intent to accomplish the theft, Enos Burden used physical force upon Richard Scott Phillips by shooting him with a gun;

AND

C. That the Defendant ... had solicited, commanded, or engaged in a conspiracy with Enos Burden to use physical force against Richard Scott Phillips in order to take money from him or aided, counseled, or attempted to aid George Vanover in planning or committing the offense of Robbery of Richard Scott Phillips.

Obviously, the trial court failed to instruct the jury on the essential element of whether Harper, through her actions, had the intention that Phillips either be murdered or robbed. Wilson v. Commonwealth, Ky., 601 S.W.2d 280, 286 (1980), sets forth an adequate instruction concerning a defendant's mental state in a complicity to murder instruction. In Wilson, the trial court instructed the jury on complicity to murder in pertinent part:

The jury will find the defendant, Shelia Wilson guilty if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

. . . .

(c) That the defendant, Shelia Wilson, aided and assisted said Goff or `Radford' by transporting him to and from the scene of said shooting;

and

(d) That in so aiding and assisting Goff or `Radford' it was Shelia Wilson's intention to cause the death of Michael Lewis Wilson.

601 S.W.2d at 285 (emphasis added). The Wilson Court held that this instruction was sufficient as to the appellant's mental state. Id. at 286. A similar instruction concerning Harper's mental state would have been sufficient in the case at bar. The failure to instruct at all on her mental state was reversible error.

We also note that Justice Cooper's specimen instruction includes all the necessary elements of an instruction on complicity charge pursuant to KRS 502.020(1). That instruction, which uses complicity to murder as an example, provides:

You will find the Defendant guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about _________ (date) and before the finding of the Indictment herein, ____________(D-2) killed _______________(victim) by _______________(method);

B. That in so doing, ____________(D-2) caused the death of _______________ (victim) intentionally;

C. That prior to that date, the Defendant had [solicited ______________ (D-2) to kill ______________ (victim) by __________________ (method-2) (e.g., paying him a sum of money)] [entered into an agreement with ______________ (D-2) that ______________ (D-2) would kill ____________ (victim) ];

AND

D. That in [soliciting] [entering into that agreement with] ______________ (D-2), it was the Defendant's intention that ______________ (D-2) would kill ________________ (victim).

1 Cooper, Kentucky Instructions to Juries (Criminal) § 10.06 (Anderson 1999).

II. INSUFFICIENT EVIDENCE

In addition to arguing that the accomplice instructions were fatally flawed for failure to include the element of intent, she also argues that her conviction should be reversed because the Commonwealth failed to introduce any evidence that she intended, by her actions, that Burden intentionally kill Phillips. We disagree.

In a prosecution pursuant to KRS 502.020(1), in addition to having to prove that it was the defendant's intention to promote or facilitate the charged offense, the Commonwealth has the burden of proving the commission of the charged offense by another person and of proving that the defendant participated in that offense. See Lawson and Fortune, supra, at § 3-3(d)(2). It is a well-settled principle that a person is presumed to intend the logical and probable consequences of his actions and, thus, "a person's state of mind may be inferred from actions preceding and following the charged offense." Parker v. Commonwealth, Ky., 952 S.W.2d 209, 212 (1997), cert. denied, 522 U.S....