Murphy v. Com.
| Citation | 50 S.W.3d 173 |
| Decision Date | 26 April 2001 |
| Docket Number | No. 1997-SC-0606-MR.,No. 1997-SC-0621-MR.,No. 1997-SC-0622-MR.,No. 1997-SC-0595-MR.,No. 1997-SC-0607-MR.,No. 1998-SC-0960-MR.,No. 1997-SC-0616-MR.,1997-SC-0595-MR.,1997-SC-0607-MR.,1998-SC-0960-MR.,1997-SC-0606-MR.,1997-SC-0621-MR.,1997-SC-0616-MR.,1997-SC-0622-MR. |
| Parties | Ronnell MURPHY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Commonwealth of Kentucky, Appellant, v. Ronnell Murphy, Appellee, and Ronnell Murphy, Appellant, v. Commonwealth of Kentucky, Appellee, and Dennis Sprowls (a/k/a Dennis Randall Lawler), Appellant, v. Commonwealth of Kentucky, Appellee, and Commonwealth of Kentucky, Appellant, v. Dennis Sprowls, (a/k/a Dennis Randall Lawler), Appellee, and Brandon Weathers, Appellant, v. Commonwealth of Kentucky, Appellee, and Commonwealth of Kentucky, Appellant, v. Brandon Weathers, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
Donna L. Boyce, Timothy G. Arnold, Department of Public Advocacy, Frankfort, for Ronnell Murphy.
Richard Hoffman, Department of Public Advocacy, Frankfort, for Dennis Sprowls.
Rebecca B. Diloreto, Department of Public Advocacy, Frankfort, for Brandon Weathers.
A.B. Chandler III, Attorney General, William L. Daniel II, Assistant Attorney General, Criminal Appellate Division, Frankfort, Charles C. Simms III, Geoghegan & Associates, Bardstown, for Commonwealth of Kentucky.
Appellants, Brandon Weathers, Dennis Sprowls, and Ronnell Murphy, were convicted in the Lame Circuit Court for first-degree burglary, kidnapping, and second-degree assault. Each was sentenced to a total of twenty-five years imprisonment, and appeals to this Court as a matter of right. For the reasons set forth herein, we affirm Weathers' and Sprowls' convictions; however, we reverse Murphy's conviction and remand the matter to the trial court for further proceedings.
During the evening of August 15, 1995, Weathers, Sprowls, and Murphy, who were all fourteen years of age at the time, burglarized the home of eighty-four year old Thallie Milby. Murphy's thirteen year old cousin, Alandre Murphy, waited outside while Appellants forced in an air conditioning unit and entered the home. Weathers and Murphy pushed Milby into a chair and bound her ankles and wrists with duct tape, as well as covered her eyes and mouth with the tape. The intruders thereafter cut the phone lines. At some point during the commission of the crime, Weathers cut off locks of Milby's hair. Before leaving, Weathers attempted to loosen the duct tape with a pair of scissors, and in the process lacerated Milby's arm causing some venous bleeding. All that Appellants took from Milby's home was a purse containing twenty dollars.
All four participants were subsequently arrested and indicted. Weathers, Sprowls and Ronnell Murphy were transferred to circuit court and tried jointly as adults. Alandre Murphy's case remained in juvenile court. Following a trial, the jury convicted Appellants and returned sentences of ten years for first-degree burglary, ten years for kidnapping, and five years for second-degree assault, which the jury recommended be served concurrently. At sentencing, however, the trial court ordered the sentences to run consecutively. This appeal ensued. Additional facts will be set forth as necessary. We first address the issues raised by all three Appellants and then turn to individual issues.
DJ Appellants argue that the trial court erred by imposing consecutive terms of imprisonment contrary to the recommendation of the jury that Appellants' sentences be served concurrently. Appellants concede that this issue is not preserved but contend that they have suffered manifest injustice so as to constitute palpable error under RCr 10.26. We disagree.
KRS 532.055 does not impose a duty upon the trial court to accept the recommendation of the jury as to sentencing. Dotson v. Commonwealth, Ky., 740 S.W.2d 930 (1987). The jury's recommendation is only that, and has no mandatory effect. Swain v. Commonwealth, Ky., 887 S.W.2d 346, 348 (1994). The trial court must consider a jury's recommendation, but may also consider the presentence investigation report which has a legitimate role in the sentencing process. Here, the trial court clearly explained its reasons for disregarding the recommendation of the jury in noting Appellants' lack of remorse, lack of parental care, prior juvenile dispositions, and criminal records of the parents. In fact, the trial court commented that it was "one concerned neighbor away from trying a death penalty case." We conclude that the trial court did not abuse its wide discretion in sentencing. There was no error.
Appellants contend that the Commonwealth failed to introduce sufficient evidence to support the second-degree assault charge and thus, the trial court erred in refusing to grant a directed verdict. Appellants concede that although they moved for a directed verdict at both the close of the Commonwealth's case-in-chief as well as the close of all evidence, they did not object to the language of the assault instruction.
KRS 508.020 provides, in pertinent part:
(1) A person is guilty of assault in the second degree when:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or (c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
During a conference on instructions, the trial court specifically found that Milby did not suffer a serious physical injury as a result of being cut with the scissors. Moreover, the trial court ruled that although Appellants were armed with knives, such were never used, and under the facts presented, the scissors were not a deadly weapon. Nonetheless, the relevant portion of jury instruction stated:
That in this county on or about August 15, 1995, and before the finding of the indictment herein, he and or others, acting in complicity with the others intentionally or wantonly caused a physical injury to Thallie Milby by cutting her[.]
Clearly, the trial court erred in including a wanton element in the instruction since it had previously ruled that Milby did not suffer a serious physical injury. See KRS 508.020(1)(c). However, the issue on appeal is not whether the instruction was correct, but whether the evidence was sufficient to avoid a directed verdict of acquittal. We are of the opinion that the Commonwealth presented sufficient evidence for the jury to reasonably find Appellants guilty of second-degree assault.
The Commonwealth introduced evidence that Milby suffered at least two cuts on her arms from the scissors, as well as several other scrapes and contusions. Appellant Sprowls admitted in his statement that Appellant Weathers had cut locks of Milby's hair while she was bound with the duct tape. Moreover, there was testimony that at the time Appellants left Milby's house, they believed she might die as a result of the severe bleeding from the cut on her arm. If, as Appellant Weathers claims, the cut to Milby's arm was accidental, then it was inconsistent for Appellants to leave the house instead of calling for help or attempting to stop the bleeding. The cutting may have been an accidental or unintended act; however, Appellant's subsequent actions in abandoning a bleeding victim are certainly subject to a reasonable inference that they intended an intentional death by exsanguination from the accidental laceration.
Unquestionably, the cuts that Milby sustained satisfy the element of physical injury. Furthermore, this Court has previously held that scissors may constitute a dangerous instrument. Commonwealth v. Potts, Ky., 884 S.W.2d 654 (1994). As such, viewing the evidence as a whole, it was reasonable for the jury to conclude that Appellants intentionally caused physical injury to Milby with a dangerous instrument. The Commonwealth produced sufficient evidence to withstand a directed verdict on the second-degree assault charge, and thus no error occurred. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
Appellants argue that they were entitled to the benefit of the kidnapping exemption statute since the restraint of Milby was incidental to the commission of the burglary. Again, we disagree. The exemption, which is found in KRS 509.050, provides, in relevant part:
A person may not be convicted of unlawful imprisonment in the first-degree, unlawful imprisonment in the second-degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of the offense, unless the interference exceeds that which is ordinarily incidental to the commission of the offense which is the objective of his criminal purpose.
Application of the exemption is determined on a case-by-case basis. Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993), overruled on other grounds, St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999); Gilbert v. Commonwealth, Ky., 637 S.W.2d 632 (1982), cert. denied, 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983). A three-part test must be satisfied before the exemption is applicable. First, the criminal purpose must be the commission of an offense defined outside Chapter 509; second, the interference with the victim's liberty must occur immediately with and incidental to the commission of the underlying offense; and finally, the interference with the victim's liberty must not exceed that which is normally incidental to the commission of the underlying offense. Smith v. Commonwealth, Ky., 610 S.W.2d 602 (1980); see also Griffin v. Commonwealth, Ky., ...
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