Lewis v. Com., 1998-SC-0087-MR.

• Decision Date: 26 April 2001
• Docket Number: No. 1998-SC-0087-MR.,1998-SC-0087-MR.
• Citation: 42 S.W.3d 605
• Parties: Jerry Lee LEWIS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

42 S.W.3d 605

Jerry Lee LEWIS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 1998-SC-0087-MR.

Supreme Court of Kentucky.

April 26, 2001.

COPYRIGHT MATERIAL OMITTED

Jerry L. Lewis, pro se, Kentucky State Penitentiary, Eddyville, Counsel for Appellant.

A.B. Chandler, III, Attorney General, William L. Daniel, II, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

Appellant Jerry Lee Lewis was indicted by a Fayette County grand jury for assault in the first degree and resisting arrest following his shooting of Lexington Metro Police Officer Tim Russell on June 30, 1996. Appellant was subsequently convicted of both charges and sentenced to twenty years in prison. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

On the night of June 30, 1996, Officer Russell responded to a "911 call" from the Wooden Shoe Farm in Fayette County, Kentucky, advising that Appellant had made terroristic telephone calls and was en route to the farm. Upon arrival, Officer Russell met with Frank Luckacs and Martha Billips Turner who attempted to describe the course of events leading up to the call. Appellant and his wife, Cynthia Lewis, had separated a few days before and Mrs. Lewis had been staying at the farm with their child. Earlier that day, Appellant had stopped by and threatened his wife and she had gone to Lexington to obtain an emergency protective order. KRS 403.740.

As the conversation progressed, a pickup truck pulled in the driveway and stopped directly behind Officer Russell's cruiser. The couple identified the driver to Officer Russell as Appellant. Russell drew his sidearm and ordered Appellant to raise his hands. Seeing that Appellant was unarmed, Russell holstered his weapon, called for backup assistance, and ordered Appellant to place his hands on the pickup truck. Instead, Appellant reached into the cab of his vehicle, pulled out a .357 magnum handgun, and threatened to shoot Russell if he did not cancel the request for backup assistance. When Appellant became momentarily distracted, Russell attempted to duck behind the passenger side of the truck, but was shot in the right side of his neck. Russell was able to continue off the driveway towards oncoming police cars. Backup officers subdued Appellant and placed him under arrest.

Officer Russell sustained severe injuries as a result of the shooting. The bullet entered his body at the base of his right neck and traversed to the left side, fracturing his left clavicle. As it crossed his body, the bullet cut Russell's carotid artery causing a life-threatening hematoma that required immediate surgery. Officer Russell also sustained an injury to his right vocal chord that left him chronically hoarse and unable to raise his voice. Finally, Russell sustained nerve damage to the left side of his face, so that his left eye now droops and he is unable to perspire on that side.

Appellant was represented by four successive attorneys at the trial level and a fifth on appeal. He dismissed his first three trial attorneys and proceeded to trial as pro se co-counsel. He raises ten claims of error, including (in a pro se reply brief) ineffective assistance of appellate counsel. None of his claims of error warrant reversal.

I. CHANGE OF VENUE.

Appellant filed two pro se motions for change of venue. Neither was accompanied by supporting affidavits. A letter attached to his second motion stated that Appellant was depending on his co-counsel (attorney) to provide the required affidavits. Nevertheless, no affidavits were filed and both motions were overruled.

KRS 452.220(2) provides that a defendant's application for a change of venue be:

in writing, verified by the defendant, and by the filing of the affidavits of at least two (2) other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true. The requirements of KRS 452.220(2) are mandatory and failure to comply is fatal to a claim of error. Caine v. Commonwealth, Ky., 491 S.W.2d 824, 828-29 (1973), cert. denied, 414 U.S. 876, 94 S.Ct. 80, 38 L.Ed.2d 121 (1973); Murray v. Commonwealth, Ky., 473 S.W.2d 150, 152 (1971); White v. Commonwealth, Ky., 394 S.W.2d 770, 772 (1965); Taylor v. Commonwealth, 240 Ky. 450, 42 S.W.2d 689, 692 (1931).

II. PHARMACOLOGY/TOXICOLOGY EXPERT.

Appellant had long suffered from a panic disorder that impeded the normalcy of his life. To treat the disorder, Appellant was prescribed certain antidepressants designed to improve a person's mood by slowing the breakdown of serotonin in the brain. In June 1996, Appellant was taking two selective serotonin reuptake inhibitors: Paxil and Redux. Appellant's primary defense was that the combination of these drugs caused him to suffer from serotonin syndrome so that he was either acting under extreme emotional disturbance or was involuntarily intoxicated when he shot Russell. To prove this theory, Appellant, pro se, moved the trial court for funds to obtain a psychiatrist, a pharmacologist, and a toxicologist. The trial judge ordered payment of $2,500 to retain the services of Dr. Mark Hyatt, psychiatrist, to assist Appellant in proving his defense. Appellant complains on appeal that it was prejudicial error for the trial judge to fail to provide him with the additional assistance of a pharmacologist and a toxicologist.

Dr. Hyatt was the chief of mental services at the Veterans Administration Hospital in Lexington. One of his specialties is psychopharmacology — the study of drug interaction on the brain. He testified that serotonin is essential to bodily communication and acts as a neurotransmitter by bridging the synaptic cleft between two nerve endings. Further, the drug Paxil augments the amount of serotonin located in the synaptic cleft and the drug Redux stimulates the excretion of serotonin from nerve endings. Dr. Hyatt testified that the two drugs should not be taken in concert. He then described the symptoms of serotonin syndrome, i.e., hyper-stimulation, restlessness, agitation, tremors, and myoclonus. However, he opined that these symptoms would not affect a person's ability to judge right from wrong. Finally, Dr. Hyatt testified that it was reasonably probable that Appellant was suffering from serotonin syndrome on the night of June 30, 1996.

We conclude that Appellant was not prejudiced by the failure to appoint additional experts. The trial judge provided funds for an expert on serotonin syndrome, which was Appellant's claim of defense. The procured expert specialized in psychopharmacology and testified to all aspects of the chemical serotonin: how it operates, how it affects the brain, and that Appellant was probably suffering from serotonin syndrome when he shot Officer Russell. Appellant does not advise what additional information could have been supplied by two more experts.

III. TESTIMONY OF VICTIM'S WIFE.

Appellant asserts that the testimony of Officer Russell's wife should have been excluded on the basis of KRE 403, which permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Appellant asserts that Mrs. Russell's testimony failed each part of KRE 403. The Commonwealth responds that the testimony was necessary to prove the severity of Russell's injuries.

Mrs. Russell described her husband's physical condition as it existed both prior to and following his vocal chord surgery. She testified about the loss of his voice, its improvement through surgery, and the condition of his shoulder. In all, Mrs. Russell testified for just over five minutes on the physical infirmities her husband exhibited after the shooting. Her testimony was relevant to prove that Officer Russell sustained a serious physical injury, an essential element of the offense of assault in the first degree. KRS 508.010(1)(a); Souder v. Commonwealth, Ky., 719 S.W.2d 730, 732 (1986). The trial judge did not abuse his discretion in determining that the probative value of this evidence was not substantially outweighed by the danger of undue prejudice, or that it was not unnecessarily cumulative. Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999).

IV. SUPPRESSION OF CONFESSIONS.

Appellant, who stood over six feet tall and weighed over 250 pounds, violently resisted the efforts of three police officers to place him under arrest. The officers were required to strike Appellant's legs with a baton, wrestle him to the ground, and spray him with pepper spray in order to subdue him. Throughout the melee, Appellant continued to fight and curse the officers. After being handcuffed and read his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Appellant was escorted to a squad car for transport from the scene. While being led to the squad car, Appellant admitted in response to a direct question that he had, indeed, shot Officer Russell. As he walked past Russell, who was still lying on the ground, Appellant spat on the ground and remarked, "I hope you die, motherf______ " Appellant filed a pretrial motion to suppress these statements; but, when the motion was called for a hearing, Appellant advised he did not desire an evidentiary hearing because he did not want to reveal his defense strategy to the prosecutor. No evidence was introduced and the motion to suppress was summarily overruled. Appellant now claims his statements should have been suppressed because of his mental illness, his intoxication, and police coercion.

If a defendant moves to suppress a confession or other incriminating statements made by him, RCr 9.78 requires that the...