Lofthouse v. Com.

• Decision Date: 24 February 2000
• Docket Number: No. 1998-SC-0632-DG.,1998-SC-0632-DG.
• Citation: 13 S.W.3d 236
• Parties: Joseph K. LOFTHOUSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

13 S.W.3d 236

Joseph K. LOFTHOUSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-0632-DG.

Supreme Court of Kentucky.

February 24, 2000.

Russell J. Baldani, Baldani, Rowland & Richardson, Lexington, for appellant.

A.B. Chandler, III, Attorney General, Frankfort, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.

COOPER, Justice.

Jerry Buford died of a drug overdose at his residence in McCracken County, Kentucky, during the early morning hours of April 11, 1995. Specifically, his cardiovascular, pulmonary and central nervous systems failed as a result of his voluntary ingestion of quantities of alcohol, cocaine and heroin. Appellant Joseph K. Lofthouse had provided Buford with the cocaine and heroin which contributed to his death. Following a trial by jury, Appellant was convicted of reckless homicide, KRS 507.050, and of two counts of trafficking in a controlled substance in the first degree, KRS 218A.1412. He was sentenced to one year in prison for his conviction of reckless homicide, and to five years in prison for each of his convictions of trafficking in a controlled substance. The sentences were ordered to run consecutively for a total of eleven years. The Court of Appeals affirmed and we granted discretionary review. CR 76 .20. We now affirm in part and reverse in part, vacating the conviction of reckless homicide and affirming the convictions of trafficking in a controlled substance in the first degree.

I. FACTS.

Appellant did not testify at trial, but the jury heard a statement which he gave to the police on April 12, 1995. In that statement, Appellant admitted that he furnished the cocaine and heroin to Buford while visiting in Buford's home on the night in question. He stated that he and Buford had "shot" cocaine together on previous occasions without life-threatening results. Appellant had obtained the cocaine and heroin from his regular drug supplier, who sold him the cocaine, but gave him the heroin as "something new" which Appellant should try. Appellant had, himself, ingested some of the heroin prior to the night of Buford's death. On the night in question, Appellant and Buford first consumed some beer, then decided to use the cocaine. Each ingested a quantity of the cocaine by intravenous self-injection. Several hours later, they drank some more beer and ingested some more of the cocaine. Still later, they decided to try the heroin, which they also ingested by intravenous self-injection. According to Appellant, Buford told him he had seen heroin before and knew what it was. Shortly after ingesting the heroin, Buford began perspiring heavily and went into his bedroom and lay down in front of an electric fan.

Buford's girlfriend, Amy Golden, left the residence when she saw that the two men were going to use drugs. When she returned three or four hours later, Buford was sitting on his bed and appeared to be drunk. Golden remained in the residence only a few minutes, then again departed. When she returned shortly after 2:00 a.m., she found Appellant in the kitchen drinking beer and listening to the radio and Buford in the bedroom unconscious and cold to the touch. Golden called to Appellant for help, then telephoned for emergency medical assistance. Appellant and Golden attempted to resuscitate Buford, but when the emergency medical personnel arrived, he was dead. A subsequent autopsy examination revealed the cause of death to be "cocaine, ethanol and morphine toxicity." (Heroin is a derivative of morphine.)

II. RECKLESS HOMICIDE.

Prior to the adoption of the penal code, proof of causation sufficient to convict of criminal homicide required either a direct act of force by the defendant against the victim, or an indirect act by the defendant, the probable and natural consequence of which was the death of the victim. J. Roberson, Kentucky Criminal Law and Procedure § 278 (2d ed. Anderson 1927); e.g., Graves v. Commonwealth, Ky., 273 S.W.2d 380 (1954); Hubbard v. Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947). In Graves, the defendant had unlawfully entered the victim's house and created a disturbance. He then departed, but returned and began pounding on the front door and rapping on the bedroom window. As a result of the excitement, the victim, who suffered from high blood pressure, died of a cerebral hemorrhage. The defendant's subsequent conviction of manslaughter was reversed for insufficient evidence of causation. In Hubbard, the defendant was arrested for drunkenness and taken before the county judge by the jailer and a deputy. When the judge ordered the defendant returned to jail, the defendant resisted and put up a struggle. The jailer suffered from a serious heart condition. Although no force was directed against him, the jailer suffered a heart attack during the affray and died. The defendant's subsequent conviction of manslaughter was set aside on grounds that it was purely speculative as to whether the defendant's unlawful act was sufficiently proximate to impose criminal responsibility upon him for the jailer's death.

The common law also recognized the concept of the intervening or superseding cause. An "independent intervening cause" was one which was only coincidentally produced by the defendant and relieved him of criminal responsibility unless it was reasonably foreseeable at the time of his conduct. A "dependent intervening cause" was one which was a consequence of the defendant's conduct. If the dependent intervening cause consisted of something other than a human act, it did not relieve the defendant of criminal responsibility; but if it consisted of a human act, criminal liability depended upon whether the act was a normal or an abnormal response to the defendant's conduct. Thus, in Bush v. Commonwealth, 78 Ky. 268 (1 Rodm.)(1880), the defendant was held not criminally liable for homicide where he inflicted a non-fatal wound upon the victim, who subsequently died of scarlet fever as a result of the negligence of the treating physician; but in Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 37 (1932), a conviction of manslaughter was upheld where the defendant threatened his wife with a deadly weapon while they were in a moving vehicle and she jumped from the vehicle to her death. And in Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544 (1933), it was held that a defendant could be criminally liable for poisoning his wife whether he administered the poison himself or whether he put the poison in her way to take innocently. Id., 59 S.W.2d at 547. See generally R. Lawson, Kentucky Penal Code: The Culpable Mental States and Related Matters, 61 Ky.L.J. 657, 692-93 (1972-73).

The penal code addresses the issue of causation in the context of an unintentional homicide as follows:

When wantonly or recklessly causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware....

KRS 501.060(3). This provision was adopted from section 2.03 of the Model Penal Code. "[T]he plain intent of the statute is to have the causation issue framed in all situations in terms of whether or not the result as it occurred was either foreseen or foreseeable by the defendant as a reasonable probability." R. Lawson and W. Fortune, Kentucky Criminal Law, § 2-4(d)(3), at 74 (LEXIS 1998).

Appellant was convicted of reckless homicide, i.e., of causing Buford's death while acting recklessly. KRS 507.050(1). The penal code defines "recklessly" as follows:

"Recklessly" — A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

KRS 501.020(4).

Appellant posits that, as a matter of law, one who furnishes narcotic drugs to a person who dies as a result of voluntarily ingesting those drugs cannot be liable for criminal homicide, because ingestion of narcotic drugs does not normally result in death. Appellant offered no evidence at trial to support this proposition, but relies primarily on a quote from a concurring opinion in a case decided by an intermediate appellate court in New York that "the proportion of such deaths [from narcotics] to the number of times narcotics are currently being used ... is not nearly great enough to justify an assumption by a person facilitating the injection of a narcotic drug by a user that the latter is thereby running a substantial and unjustifiable risk that death will result from that injection." People v. Pinckney, 38 A.D.2d 217, 328 N.Y.S.2d 550, 556-57 (N.Y.App.Div.1972) (Shapiro, J., concurring). However, that statement also was unsupported by any evidence (which, presumably, is why it is in a separate concurring opinion rather than in the majority opinion). In Pinckney, the state was appealing the pre-trial dismissal of the indictment, so there had been no trial and no evidence. Apparently, the concurring judge was taking judicial notice of "the proportion of such deaths [from narcotics] to the number of times narcotics are currently being used." In our jurisdiction, a fact cannot be judicially noticed unless it is "[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." KRE 201(b)(2). We agree with the Tennessee Supreme Court that facts such as these are "more properly a matter of evidence than of judicial notice." State v. Randolph, 676 S.W.2d 943, 946 (Tenn.1984).

The majority opinion in Pinckney, supra, purported to rely on the fact that the Penal Law of New York contained no provision...