Mills V. Com., 1999-SC-1146-MR.
| Decision Date | 24 May 2001 |
| Docket Number | No. 1999-SC-1146-MR.,1999-SC-1146-MR. |
| Citation | 44 S.W.3d 366 |
| Parties | Gary Haven Cochran MILLS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Emily Holt, Assistant Public Advocate, Frankfort, Counsel for Appellant.
A.B. Chandler III, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Frankfort, Counsel for Appellee.
Gary Mills was found guilty of complicity to intentional murder, first degree-robbery, third-degree arson, and second-degree persistent felony offender. He was sentenced to life without the possibility of parole for twenty-five years for the murder charge, life imprisonment for the robbery charge, and ten years' imprisonment on the arson charge. As required by statute, the sentences were ordered to be served concurrently. Because the trial court erred in allowing the jury to hear audio taped statements in private during its deliberations, we reverse and remand for a new trial.
William Ratliff suffered a brutal and senseless death. On March 20, 1998, his body was discovered in the hulk of a burned truck near an abandoned strip mine. He died not from the fire, but from a stab wound to the neck. Gary Mills and Melody Bowen soon became suspects in Ratliff's murder. They were arrested five days later. Two days thereafter, a grand jury indicted the pair on charges of murder, robbery, and arson. Additionally, Mills was charged with second-degree persistent felony offender and intimidating a witness. The latter charge was ultimately severed.
Bowen was indicted as the principal to the murder and robbery charge and Mills was indicted with complicity to murder. Bowen eventually entered into a plea agreement with the Commonwealth, in which she pled guilty to numerous lesser charges and was sentenced to fifteen years' imprisonment. As part of the agreement, Bowen agreed to testify against Mills at his trial.
At trial, there were two different versions of the circumstances surrounding Ratliffs death. The Commonwealth's version was based on Bowen's testimony. Mills' version was based on his own testimony. Additional witnesses were called by both sides to corroborate details of each respective version.
Bowen and Mills had been dating for about two weeks before Ratliff was murdered. According to Bowen, Mills hatched the plan to rob Ratliff. She testified that on the night of the murder, she and Mills drove by Ratliff's house. Once there, Mills let her out of the car and she went to Ratliffs house with a story about car trouble. After hearing Bowen's tale of woe, Ratliff volunteered to give her a ride.
Per Mills' instructions, Bowen directed Ratliff to where Mills and the "disabled" car were. Mills was under the hood of the car when they arrived. Mills then got into Ratliffs truck and the three of them drove away. Sometime later, Mills told Ratliff to stop the truck and pulled out a pistol, which he aimed at Ratliff. Apparently, Ratliff did not take the threat seriously. He tried to swat the gun away from Mills. Ratliff and Mills then began to fight. Bowen, while attempting to help Mills, accidently struck him instead of Ratliff.
During the fight, a knife fell out of Mills' pocket and landed in the truck's floorboard. Mills told Bowen to retrieve it. While she was retrieving the knife; Mills shot Ratliff because "he was going to run." Mills and Bowen searched Ratliff and found two billfolds, which held substantial amounts of cash. The two tossed Ratliff in the back of the truck and drove to the abandoned strip mine, with Mills driving the truck and Bowen driving the car. Once there, they placed Ratliff in the driver's seat of the truck. Mills told Bowen to stab Ratliff, which she did. Mills set the truck on fire and they fled the scene.
They went to Mills' sister's house to clean up and count the money. Later, they burned their clothes and disposed of the knife and gun. Bowen, on her own, set her car afire in an attempt to destroy evidence.
According to Mills, he and Bowen were out drinking and driving when her car broke down near Ratliff's home. Bowen told him that she knew Ratliff and she would go ask him if he would give the car a jump start. Bowen left and returned with Ratliff in his truck. While the battery was charging, the threesome started drinking beer. The suggestion was made to go somewhere and drink more. All being agreeable, Mills and Bowen followed Ratliff to the abandoned strip mine.
Once there, Ratliff wanted to talk with Bowen alone. The pair walked away leaving Mills alone with the two vehicles. When Bowen and Ratliff returned, they were arguing. Mills became involved in the argument and, consequently, got into a fist fight with Ratliff. Mills was smaller than Ratliff, who soon got the best of Mills. During the fight, a gun that Mills had tucked into the back of his pants, fell to the ground. Bowen grabbed the gun. While Ratliff was on top of Mills beating him with his fists, Bowen struck Ratliff at least twice in the head with the gun. Also, she accidently hit Mills. Mills then took the gun away from Bowen. Before he could do anything to stop her, Bowen grabbed a knife and stabbed Ratliff with it.
Mills admitted that he helped cover up the murder by burning his and Bowen's clothes and by disposing of the gun. But, he denied ever taking any money from Ratliff, shooting him, or any responsibility for his death. In Mills' own words,
Mills argues that, based on the evidence, he was entitled to instructions to lesser-included offenses of complicity to second-degree manslaughter and complicity to reckless homicide. We disagree.
Instructions on the lesser-included offenses of complicity to second-degree manslaughter and complicity to reckless homicide could only be given as a complicity to the result instruction under KRS 502.020(2). Harper v. Commonwealth, Ky., 43 S.W.3d 261, 266 (2001). Id. at 266. As we explained in Tharp v. Commonwealth, Ky., 40 S.W.3d 356, 361 (2000):
[A] defendant can be found guilty of complicity to an unintentional homicide under KRS 502.020(2) if there is evidence that he/she either actively participated in the actions of the principal, or failed in a legal duty to prevent those actions, without the intent that those actions would result in the victim's death, but with recklessness, i.e., failure to perceive a substantial and Unjustifiable risk that death would result, KRS 501.020(4), supporting a conviction of reckless homicide by complicity, KRS 507.050; wantonness, i.e., an awareness of and conscious disregard of a substantial and unjustifiable risk of that result, KRS 501.020(3), supporting a conviction of manslaughter in the second degree by complicity, KRS 507.040; or aggravated wantonness, i.e., wantonness creating a grave risk of death under circumstances manifesting an extreme indifference to human life, supporting a conviction of wanton murder by complicity, KRS 507.020(1)(b).
As previously stated, there were two versions of Ratliff's murder. According to Bowen, Mills plotted to rob Ratliff. And, Mills directed her to stab Ratliff prior to Mills setting the truck on fire, with Ratliff inside, and she followed those directions. This version of events would only support a finding of either complicity to intentional murder under KRS 502.020(1), or complicity to wanton murder under KRS 502.020(2). According to Mills, after he took the gun away from Bowen, she produced a knife and stabbed Ratliff in the neck and there was nothing he could do to stop her. Under Mills' version of events, there was no plan to rob Ratliff. And, it was Bowen who knew Ratliff, asked him for help, and brought him to the disabled car. His version does not support instructing on any lesser-included offenses because it does not show that Mills either solicited or engaged in a conspiracy with Bowen to stab Ratliff or aided, counseled, or attempted to aid Bowen in planning, or engaging in the stabbing of Ratliff. See KRS 502.020(2).
Mills argues that the complicity to murder instruction should have included the specific act or acts of complicity he committed. Specifically, he argues that the jury should have been instructed to find that he gave Bowen the knife with the intent that she use it to kill Ratliff. He tendered instructions that would have required the jury to find in pertinent part:
The trial court did not submit the defense's tendered instruction; rather, the trial court's instruction to the jury on the complicity to murder...
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