Port v. Com.

• Decision Date: 06 July 1995
• Docket Number: No. 93-SC-460-MR,93-SC-460-MR
• Citation: 906 S.W.2d 327
• Parties: Jonathan PORT, Appellant. v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 327

906 S.W.2d 327

Jonathan PORT, Appellant. v. COMMONWEALTH of Kentucky, Appellee.

No. 93-SC-460-MR.

Supreme Court of Kentucky.

July 6, 1995.

As Modified July 10, 1995.

Rehearing Denied Oct. 19, 1995.

Julie Namkin, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Frankfort, Cindy A. Goldhill, Karen Quinn, Asst. Attys. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant, Jonathan Port, was convicted in Warren Circuit Court of intentional murder but mentally ill and sentenced to life, criminal attempt to commit murder but mentally ill and sentenced to twenty years, and wanton endangerment in the first degree but mentally ill and sentenced to five years. The indeterminate sentences are to run concurrently with the life sentence. Port appeals to this Court as a matter of right.

Appellant entered Stel's Diner in Smith's Grove, Kentucky and fired two shots at customers sitting at a table in the restaurant. One shot hit Robert Roberts in the abdomen. The other shot hit William Ratliff on the back of his left shoulder, perforated his lung, and travelled through the thoracic cavity. William Ratliff died as a result of his injuries.

Some of the other customers at Stel's Diner wrestled with Mr. Port and subdued him. When Sheriff Eadens arrived, he found Mr. Port sitting in a chair. He handcuffed Mr. Port and took him outside of the restaurant. When Mr. Eadens asked Mr. Port for identification, he stated that "he knew his rights and that he didn't have to give Eadens his identification and that he wanted an attorney."

Appellant first claims error in that the trial court failed to direct a verdict of not guilty by reason of insanity. The issue was preserved by appellant's motion for a directed verdict of acquittal.

One week after the incident a psychiatrist examined Mr. Port and stated in his report that Mr. Port "has clearly been psychotic with a paranoid disorder for many months." At trial, another psychiatrist testified that Mr. Port was suffering from paranoid schizophrenia and that at the time of the incident Mr. Port "lacked the substantial capacity to conform his conduct to the requirements of the law." On cross-examination the prosecutor asked how could Mr. Port know enough to tell the policeman within minutes of the shooting that he knew his rights and that he wanted an attorney. The prosecutor also elicited from Mr. Port on cross that he had been treated for paranoid schizophrenia in 1973, 1982, and 1988.

Appellant asserts that the prosecutor improperly relied on Mr. Port's request for counsel immediately following the incident as evidence of his sanity. Appellant further suggests that this is the only evidence presented on the record to rebut the defendant's contention that he was insane at the time of the incident, and, therefore under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), because "no rational trier of fact could have found proof of [Mr. Port's sanity] beyond a reasonable doubt," he was entitled to a directed verdict of acquittal. Id. at 324, 99 S.Ct. at 2791-92.

In reviewing Jackson, we conclude that appellant was not denied his due process rights as he was not "convicted upon inadequate evidence." Jackson, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). The rule of law set forth in that case actually reads, "the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt," not proof of sanity as suggested by appellant. Id. (emphasis added). This distinction is an important one as it reflects who has the burden of proof on the insanity issue. Since appellant has offered up insanity as a defense to the charge of intentional murder, under the law of this Commonwealth, he bears the risk of not persuading the factfinder that he was in fact insane at the time of the incident. KRS 500.070(3); Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977).

The appellant does, however, raise an interesting question as to what is the required standard of measurement in determining whether the case should be submitted to the jury whether the appellant is entitled to a directed verdict. The relevant determining factor is not whether there needed to be expert testimony presented in rebuttal. "It is not necessary that there be a battle between the experts as to the sanity of the accused." Wiseman v. Commonwealth, Ky., 587 S.W.2d 235, 237-238 (1979). Rather the issue we address is whether the evidence presented on the record, inclusive or exclusive of expert testimony, was sufficient to present a jury issue, thereby defeating appellant's directed verdict motion.

This Court has previously announced this standard in our opinion in Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984), where we stated when "[i]t would not be clearly unreasonable for a jury to find against the defendant on the issue of insanity," it may be submitted to the jury. The applicable standard in this case, therefore, is whether it would be clearly unreasonable for a jury to find against the defendant on the issue of insanity. This standard is further reflected in this Court's holding in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977) and reiterated in Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983), which states it as follows:

If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.

At oral argument, the Commonwealth suggested that this Court's holding in Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1981), enables the issue of insanity to be submitted to the jury because of our statement that "where there is any evidence indicative of his sanity, there is presented an issue of fact for a jury determination." Id. at 585 (emphasis added). In isolated context, this statement could mistakenly be interpreted to lessen the standard required, in this particular circumstance, to deny a motion for a directed verdict of acquittal. However, the issue in Wiseman, to which the Hayes opinion refers, was determining the need for expert versus lay testimony in supporting a rebuttal of insanity. The use of "any" evidence refers to the acceptable usage of lay testimony to rebut the testimony of experts on the issue of insanity. The mere presence of any evidence does not necessarily enable the issue to be submitted for jury determination. At this point, the evidence that has been presented must still, "when taken as a whole," meet the sufficiency requirements set forth in Ice, Trowel, and Sawhill.

In evaluating the evidence in Ice, we considered "the circumstances preceding the commission of the crime, the evidence regarding the circumstances surrounding its occurrence, and the activities of the accused thereafter, when taken as a whole...." Id. at 678. The evidence presented to the jury clearly indicated that appellant had committed the acts in question. Evidence introduced also included testimony from patrons at Stel's Diner that during the shootings, the appellant appeared to be in control. The police testified that he acted rationally when he was apprehended by them, and the appellant himself testified that he chose to shoot at the patrons of the diner because they were the cause of his frustration. Taking this evidence as a whole, it was not clearly unreasonable for any juror to find the defendant was not insane at the time of the incident.

Appellant's second contention of error is unpreserved. Appellant asserts that review under RCr 10.26 is necessary to prevent a substantial risk of a miscarriage of justice when the Commonwealth used appellant's invocation of his right to counsel as evidence of his sanity. Appellant cites to the U.S. Supreme Court's opinion in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), where they held it was fundamentally unfair to use the defendant's post-arrest, post-Miranda warnings silence as evidence against him. In this case the evidence was used for the purpose of proving the appellant's sanity. Appellant concedes the record does not indicate he was read his Miranda rights by Sheriff Eadens. However, he argues that since Mr. Port was in custody of the police, he must have been read his Miranda rights.

The Commonwealth maintains, on the other hand, that the request for counsel by Port was pre-Miranda, even though he was in the custody of the police. This argument relies on the premise that mere custody does not set into motion the need for the Miranda safeguards. Under the evidence maintained on the record, it is clear Port was not being subjected to custodial interrogation that would have required his having been Mirandized. Rather, he was only being asked for identification, which does not constitute custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971).

Also, the rationale of the Wainwright holding rested upon the idea that it is unfair for a suspect to exercise his "right to remain silent" after being Mirandized and then have that silence used against him. This was not the situation in this case. According to the record, Port did not exercise his right to remain silent as a result of being told of his Miranda rights.

The U.S. Supreme Court reviewed a similar fact situation in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The prosecutor argued that the fact that the accused remained silent for two weeks after the crime, even though he claimed to have been acting in self-defense, indicated that self-defense was unlikely. The U.S. Supreme Court held that the use of this evidence to rebut the claim of self-defense was acceptable in that the accused was silent on his own accord and not...