Mullins v. Commonwealth
| Decision Date | 20 December 2012 |
| Docket Number | 2011-SC-000634-MR |
| Parties | CYNTHIA MULLINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM PIKE CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Cynthia Mullins appeals from a Judgment of the Pike Circuit Court convicting her of first-degree assault and imposing a twenty-year sentence. Mullins raises five issues on appeal: (1) the Commonwealth failed in its burden to show a serious physical injury justifying a finding of assault in the first degree; (2) the trial court erred in denying the motion for mistrial based on the improper testimony of a pretrial services officer; (3) the trial court erred in determining Mullins was competent to stand trial; (4) the Commonwealth committed a Moss violation when it asked Mullins to comment on the truthfulness of a witness; and (5) the guilty but mentally ill jury instruction was incorrect. We find no error on the first, third, and fifth claims. Regarding the other claims, we find the admission of the pretrial services officer's testimony about certain information obtained from Mullins to be in error and that some of the Commonwealth's questions to Mullins constituted a Mossviolation. However, the unpreserved error regarding the pretrial services officer's testimony is not palpable and the Commonwealth's Moss violation was not sufficiently egregious as to justify reversal.
On April 9, 2009, Lora Hall Damron was shopping at the Pikeville, Kentucky, Wal-Mart with her three-year old daughter in tow. The then eight-months pregnant Damron encountered Cynthia Mullins, a woman whom she had never met before, several times throughout the store. Their first meeting was innocuous enough, as Mullins greeted Damron as if the two were acquaintances. However, Damron became increasingly suspicious of Mullins who appeared to be following her through the store. As Damron was collecting some last minute items from the soda aisle, Mullins approached her from behind. Turning, Damron witnessed Mullins wielding a five-inch steak knife. Mullins stabbed Damron three times in the left thigh before fellow shopper Randy Stiles tackled Mullins to the ground. A bleeding Damron was assisted by Wal-Mart employees who provided her a chair and applied pressure to her wounds. Meanwhile, Mullins was pinned to the floor by Stiles until the police arrived.
Detective Phillip Reed of the Pike County Police Department was the first to arrive at the scene. He observed a large amount of blood on Damron, saturating her pants, as well as blood on the floor. Detective Reed took custody of Mullins and interviewed her at the police station. His interviews with Mullins and witnesses revealed that Mullins selected a steak knife and apair of scissors from the aisles of Wal-Mart, later electing to use the knife in the attack. The knife's protective plastic covering was found in Mullins's shopping cart.
Damron was taken by ambulance to Pikeville Medical Center, a local hospital, where she was examined by doctors. The treating physicians at Pikeville Medical Center, concerned with her unborn child's fluctuating heart rate, ordered that Damron be transferred by helicopter to the University of Kentucky Hospital in Lexington, Kentucky. At the University of Kentucky Hospital, Damron was given fifteen sutures to treat three 1-2 centimeter stab wounds on her left thigh. She was monitored for twenty-four hours by medical staff and released the following day.
Mullins was indicted by a Pike County grand jury on April 29, 2009. She was charged with one count of first-degree assault and as a second-degree persistent felony offender. After a jury trial at which she raised an insanity defense, Mullins was found guilty but mentally ill of first-degree assault and sentenced to twenty years in prison.1 She appeals as a matter of right to this Court, Ky. Const. § 110(2)(b).
Mullins contends there was insufficient proof of a "serious physical injury" to convict her of assault in the first degree and thus the trial court erredin denying her motion for a directed verdict. In a criminal case, the United States Constitution mandates that the government prove every element of the charged offense beyond a reasonable doubt, and any failure to do so violates the accused's right to Due Process. In re Winship, 397 U.S. 358 (1970). See also KRS 500.070(1).
This alleged error is unpreserved,2 and we therefore analyze the claim pursuant to Kentucky Rule of Criminal Procedure ("RCr") 10.26. Under RCr 10.26, a reviewing court may reverse for unpreserved error "if it deems the error to be a palpable one which affected the defendant's substantial rights and resulted in manifest injustice." Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011) (citing Commonwealth v. Pace, 82 S.W.3d 894 (Ky. 2002)). We find no palpable error on these facts.
To convict Mullins of assault in the first degree, the Commonwealth had to prove that Mullins intentionally caused serious physical injury to Lora Beth Damron by means of a deadly weapon or a dangerous instrument. KRS 508.010.3 When determining whether a defendant caused a "serious physical injury," the issue is whether there was proof of an act that did, in fact, cause"serious physical injury." Anderson v. Commonwealth, 352 S.W.3d 577 (Ky. 2011). In order to be deemed "serious physical injury," the injury must produce a substantial risk of death, serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. KRS 500.080(15).4 The question of whether an act produced a substantial risk of death must be determined on a case-by-case basis, considering the "totality of the evidence" in each case. Cooper v. Commonwealth, 569 S.W.2d 668 (Ky. 1978). Not all risks are substantial, and not every "what could have happened" scenario will support a finding of a serious physical injury. Bell v. Commonwealth, 122 S.W.3d 490 (Ky. 2003).
The Commonwealth did not call any medical experts to testify about Damron's injuries. Instead, Detective Phillip Reed and Damron gave testimony regarding the attack and its aftermath. According to Damron, she was initially transported to Pikeville Medical Center following the attack, but was then flownto the University of Kentucky Hospital. While there she received stitches to treat several stab wounds on her thigh and her unborn child was also monitored for twenty-four hours due to an irregular fetal heartbeat. In addition to injuries to her thigh, Damron also received defensive wounds on her palms. Her pants and shirt were covered in blood, and there was blood on her three-year old daughter as well.5 When Detective Reed arrived on the scene, he observed a large amount of blood covering Damron from her upper thigh to her knee as well as some blood on the floor. When asked by the Commonwealth to compare the amount of blood at the Wal-Mart to that of other assault scenes, Detective Reed characterized it as "more [blood] than normal," and further stated that the amount of blood on the floor indicated the use of a weapon (such as the 5-inch knife) in the attack.
While medical testimony may be preferred, lay testimony may be used to establish the seriousness of physical injury. Brooks v. Commonwealth, 114 S.W.3d 818 (Ky. 2003) (citing Johnson v. Commonwealth, 926 S.W.2d 463 (Ky. Ct. App. 1996)). The testimony offered by Damron and Detective Reed sufficiently demonstrated a serious physical injury that produced a substantial risk of death, notably the risk posed by Damron's loss of blood. As noted, Detective Reed, a police officer with eight years experience at the time of the incident, testified to a "large" amount of blood on the victim, "more than normal" in reference to other assault crime scenes. See Brooks, 114 S.W.3d at823-24. (evidence of a large amount of blood pooled in the victim's lap after a stabbing was sufficient to support a finding of serious physical injury producing a substantial risk of death). Detective Reed also observed Wal-Mart employees applying pressure to Damron's wounds, which indicates that lay onlookers deemed her injuries serious enough to require aid.
It is unclear whether records regarding Damron's medical treatment were considered by the jury.6 In any event, the medical records corroborate Damron's testimony that she was initially taken by ambulance to Pikeville Medical Center, but was ultimately flown to the University of Kentucky Hospital where she received sutures for her stab wounds and she and her unborn child were monitored for twenty-four hours.
As noted by the Court in Cooper, 569 S.W.2d at 668, what constitutes a substantial risk of death "turns on the unique circumstances of an individual case." Damron was eight and one-half months pregnant at the time of the attack and her condition must be considered when evaluating the seriousness of her physical injuries. Cooper, 596 S.W.2d at 671 (...
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