Harris v. Com.

• Decision Date: 15 March 1990
• Docket Number: No. 88-SC-45-MR,88-SC-45-MR
• Citation: 793 S.W.2d 802
• Parties: John Anthony HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 802

793 S.W.2d 802

John Anthony HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-45-MR.

Supreme Court of Kentucky.

March 15, 1990.

As Modified on Denial of

Rehearing Sept. 6, 1990.

J. David Niehaus, Deputy Appellate Defender, Jefferson Dist. Public Defender, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant, John Anthony Harris, was convicted of kidnapping, wanton murder, tampering with physical evidence, and abuse of a corpse. He received these sentences: life without possibility of parole for 25 years for the kidnapping; life imprisonment for murder; five years' imprisonment for tampering; and 12 months and a $500 fine for abuse of a corpse. He appeals his conviction as a matter of right. We affirm.

Testimony at trial was that the appellant planned on "playing a joke" on Sabra Ann Diamond and invited James Timothy Elmore to join him. Testimony established that appellant and Elmore planned to stop Ms. Diamond's car and shoot a gun into the air to scare her. On the night of April 8, 1986, the pair followed her in a car driven by Elmore. They stopped her on a deserted road by blocking her car with Elmore's car. Carrying a loaded, cocked pistol, appellant approached her car on the driver's side. Ms. Diamond refused to speak with him. The appellant then pointed the pistol at the victim's head, and she opened the car door and "lunged" out at him. When she reached for the gun appellant pulled the trigger. The victim died from a gunshot wound to the head.

Appellant confessed that he and Elmore placed Ms. Diamond's body in Elmore's car. They drove to LaGrange and dragged the victim's body into the woods, where appellant removed her clothes and covered the corpse with leaves. There was evidence that the corpse was subjected to sexual intercourse. Elmore testified that he observed appellant commit the act. Appellant took the victim's purse from her car. The police determined that a small amount of money was missing from her purse. As a result, appellant was also charged with robbery and tampering with physical evidence.. The jury acquitted him on the robbery charge.

Appellant presents eight assignments of error. We will address them in the order presented in his brief.

First, appellant claims that his confession to the police should have been suppressed because it was obtained in the absence of counsel after he had repeatedly requested a lawyer. The trial judge held an evidentiary hearing pursuant to RCr 9.78 and found that Harris's statement was given voluntarily and that his claim of a request for counsel was not credible. The record shows that the trial court's ruling is supported by substantial evidence, and its factual findings are therefore conclusive. RCr 9.78; Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921 (1986), cert. denied, 484 U.S. 970, 108 S.Ct. 468, 98 L.Ed.2d 407 (1987). The motion to suppress appellant's confession was properly overruled.

Appellant next claims that it was error for the trial court to instruct the jury on wanton murder, because there was insufficient evidence from which the jury could conclude that he acted under "circumstances manifesting extreme indifference to human life," as required by KRS 507.020(1)(b). Appellant failed to preserve this issue by making a specific objection. RCr 9.54(2); Commonwealth v. Duke, Ky., 750 S.W.2d 432 (1988). Even if appellant had properly preserved this allegation of error, his argument is without merit. The record shows that the evidence was sufficient to support the wanton murder instruction: appellant was carrying a loaded, cocked pistol, and admitted intent to point it at the victim but did not admit intent to cause her death. Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984). The wanton murder instruction was proper.

The next series of alleged errors involves the propriety of appellant's kidnapping conviction.

Appellant argues that a capital offense was neither alleged nor proved, with respect to kidnapping. His argument has two prongs. First, he claims that the language of the indictment did not properly charge a capital offense. Second, he complains that the kidnapping instruction given at the close of the guilt/innocence phase of trial failed to require proof of the victim's death.

As to the first argument, appellant correctly states that kidnapping is a capital offense when the victim is not released alive. KRS 509.040(2). Appellant argues that since the indictment did not specifically allege that Ms. Diamond was not released alive, capital kidnapping was not alleged. Appellant favors form over substance. The record shows that count one of both the original indictment and an amended version stated that kidnapping was being charged as a capital offense. Count two stated that the victim suffered death. Both the capital proceeding notice and the bill of particulars noted that the kidnap victim died as a result of the appellant's actions. We hold, therefore, that the appellant was not misled by the indictment as to the penalty and its basis. Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). The indictment was sufficient. RCr 6.12; Howard v. Commonwealth, Ky., 554 S.W.2d 375 (1977).

We find appellant's second argument to be a curious one. At trial, defense counsel argued against instructing the jury on capital kidnapping, and the record shows that no capital kidnapping instruction was given in the guilt/innocence phase. Yet appellant now complains that the kidnapping instruction submitted to the jury at the close of evidence did not require proof of the victim's death. This is the very element that enhances kidnapping to a capital offense. Appellant attempts to assign error to the granting of the very relief he requested.

Further, appellant's allegation of error is without merit. There was sufficient evidence presented for the jury to find that the victim was not released alive. After the jury heard all of the evidence, it found that appellant had murdered the kidnapping victim. Any error was therefore harmless.

Next, appellant argues that his aggravated sentence of life imprisonment without possibility of parole for 25 years for kidnapping is error because the jury did not find one of the aggravating circumstances enumerated in KRS 532.025(2)(a). In making his argument, appellant points to the language in KRS 532.025(3), which states that, "In all cases unless at least one of the statutory aggravating circumstances enumerated in subsection (2) of this section is so found, the death penalty or the sentence to imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five years of his sentence, shall not be imposed" (emphasis added).

The record shows that the aggravating circumstance which the jury found beyond a reasonable doubt and designated in writing was that "in the course of the commission of the Kidnapping, [Harris] murdered Sabra Ann Diamond." Appellant is correct in stating that this aggravating circumstance is not among the seven listed in 532.025(2)(a). However, he overlooks the introductory language of that very subsection, which expressly authorizes the judge and jury to consider "any aggravating circumstances otherwise authorized by law." Here, the "aggravating circumstance otherwise authorized by law" is provided by the penalty section of the kidnapping statute, KRS 509.040(2), which makes kidnapping a capital offense when the victim is not released alive.

We agree that subsection 3 of KRS 532.025 is inartfully drafted. We believe, however, that the reference in subsection 3 to "statutory aggravating circumstances enumerated in subsection 2" is a reference to all of subsection 2, not merely to that portion which lists specific aggravating circumstances. This interpretation finds support in subsection 1(b) of the statute. Subsection 1(b) directs the jury in all death penalty cases to determine the existence of any aggravating circumstances "as defined in subsection (2)," (emphasis added) and hence does not limit the jury's consideration to those aggravating circumstances that are specifically enumerated. See Stanford v. Commonwealth, Ky., 734 S.W.2d 781, 790 (1987). The literal language of the last sentence in subsection 3 is in apparent conflict with the statute's general purpose, as gathered from all parts of the statute. The literal language must surrender. Oates v. Simpson, Ky., 174 S.W.2d 505, 507 (1943).

Therefore, under the facts as they exist in this case, we hold that the jury found a proper aggravating circumstance to support the sentence of life without parole for 25 years.

Appellant next contends that it was double jeopardy to convict him of both murder and capital kidnapping. Appellant argues that murder does not require proof of any fact not included in capital kidnapping, and thus under the test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the murder charge must merge into capital kidnapping. This argument rests on the premise that proof of the victim's death is necessary to establish the offense of kidnapping under KRS 509.040. We disagree.

The elements of kidnapping and murder are set out in KRS 509.040(1) and 507.020, respectively.

509.040. Kidnapping.-- (1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:

(a) To hold him for ransom or reward; or

(b) To accomplish or to advance the commission of a felony; or

(c) To inflict bodily injury or to terrorize the victim or another; or

(d) To interfere with the performance of a governmental or political function; or

(e) To use him as a shield or hostage.

509.020. Murder.-- (1) A person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person or...