Ray v. Commonwealth

Decision Date29 October 2020
Docket Number2019-SC-0164-MR
Citation611 S.W.3d 250
Parties Brady Lee RAY, Appellant v. COMMONWEALTH of Kentucky, Appellee
CourtSupreme Court of Kentucky

COUNSEL FOR APPELLANT: Aaron Reed Baker, Department of Public Advocacy, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, Christopher Henry, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE LAMBERT

Brady Ray was convicted on one count each of attempted murder, first-degree robbery, first-degree burglary, first-degree wanton endangerment, and violating an emergency protective order/domestic violence order (EPO/DVO). He now appeals his resultant sixty-five-year sentence to this Court. After review, we affirm.

FACTUAL BACKGROUND

Ray and Denise1 were high school sweethearts who grew apart but reconnected many years later. Soon after their reunion they decided to marry. From their wedding day in May 2016 until August 2016, Ray and Denise lived together with Denise's two children. In August, Denise's mother suddenly passed away. Because of this, Ray, Denise, and her children moved in with Denise's father Tim to assist in his care. Tim is paralyzed from the waist down and must use a wheelchair. He also suffers from heart health issues and had several surgeries during the time Denise and Ray lived with him.

When Denise and Ray initially moved in with Tim, all was well. However, the marriage soon turned sour when Denise discovered Ray's addiction to prescription pain medication. Denise was clear with Ray from the beginning of their relationship that drug abuse was "a deal breaker," as she did not want her children to be exposed to that lifestyle. Accordingly, in mid-November 2016, Denise asked Ray to pack his belongings and leave. Ray's angry reaction was to pull Denise out of bed by her foot and drag her across the room. Because of this incident Denise was granted an EPO/DVO against Ray that was effective until November 21, 2017. The EPO/DVO permitted contact between the two via telephone. Denise explained that Ray told her he would go to rehab, and it was her wish to mend the marriage if he maintained sobriety. However, Denise quickly discovered that Ray's claims regarding rehab and doing better were lies, and she filed for divorce soon after.

Then on January 31, 2017, Ray texted Denise to tell her he lost his job, that he was "going to end it," and that he "wouldn't be here tomorrow." When she did not respond, he sent another text that read "I hope you're happy, it's going to end tonight." The crimes at issue took place later that night when Tim, Denise, and Denise's nine-year-old son Josh were the only people in the home.2 Tim's house has a split floor plan; Tim's bedroom is on the left side of the home, Denise and Josh's bedrooms are on the right, and a living room is between the two. Around 4 a.m. Denise awoke to the sound of glass breaking and thought Tim had fallen out of bed, which had happened in the past. As she was walking towards Tim's bedroom to check on him, she looked in the living room and saw Ray coming at her with a hammer in his hand. He had broken the lengthwise panes of glass out of the back door and entered the home. When she asked Ray why he was there he replied, "you're going with me." When she refused, he hit her in the face with the hammer over her right eye. She turned to go back towards her bedroom, he hit her again, and she fell. Denise said that Ray continued to hit her with the hammer and punched and kicked her while she was on the floor.

At this point, Josh came to the doorway of his bedroom and began begging Ray to stop hitting Denise. Denise testified that Ray said to Josh, "I'm not going to hurt you, but I'm going to kill your mom." Denise told Josh to go back to bed, but instead Josh hid in the bedroom closet and called 911. Ray continued to beat Denise and again told her to go with him, but this time he told her he would kill Tim if she did not comply. When she told him, she was not going with him he started to go down the hall towards Tim's room, hammer in hand. Denise grabbed Ray's leg, causing one of his shoes to fall off, but when she realized she could not stop him she started crawling back toward the bedroom Josh was in.

Tim testified that he was lying in bed when Ray came into his room. Ray pushed his wheelchair away and jumped onto his bed. Ray raised the hammer and said, "I'm going to kill you too, you son of a bitch." He never struck Tim with the hammer because by the time he raised it, Denise had crawled back into the bedroom and slammed the door shut. As soon as Ray heard the door close, he immediately left Tim's room and went back down the hallway after her.

Ray began hitting the bedroom door handle with the hammer. By then, Denise and Josh were climbing out of the bedroom window. Denise pushed Josh out of the window first and was able to get out of the window herself just as Ray gained entry to the room. Rather than following the two out the window, Ray dropped the hammer in the floor, where it was later found, and went out the front door of the house. Denise and Josh ran screaming for help to their neighbor Kirk's house and Ray pursued them. Josh ran onto Kirk's porch and began beating on the front door. Meanwhile, Ray caught up to them and jerked Denise off the porch steps by her hair and threw her on the ground.

Kirk testified that he awakened to the sound of what he believed was his dog fighting another dog outside. He therefore grabbed his gun and went to his front door. When he opened the door, he saw Josh standing at the threshold and then saw Denise on the ground in his front yard with Ray standing over her. Kirk pointed his gun at Ray and told him to back off. Ray put his hands up and started to back away. Kirk watched Ray cross the street and re-enter Tim's home through the front door.

When Ray re-entered the home, he stole Denise's purse which contained her driver's license, debit and credit cards, as well as approximately $800 in cash and checks.3 He then exited the home through the back door. A K-9 officer later tracked Ray's scent from the back door down a gravel driveway behind the home. The scent stopped at a barn approximately 300 yards from the home. Based on this, the investigating officers believed Ray had parked his vehicle at the barn and left the scene from that location.

Denise was taken to the hospital later that morning. She had no broken bones and was not bleeding. Her injuries included a black eye and several bruises on her left leg and hip, buttocks, both arms, and left shoulder.

The day after the attack, Ray used one of Denise's credit cards to rent a hotel room in Murray, Kentucky, the receipt for which contained his name and contact information. In addition, a shoe matching the one left in Tim's home and clothing matching the description Denise provided were left in the hotel room. Sometime shortly after, officers were able to track Ray down in Tennessee. When Ray's arresting officer searched his person incident to his arrest, Denise's driver's license and two of her credit cards were located in his wallet. During his subsequent interrogation Ray admitted smashing the back door of Tim's house that night, being in the house, and that an altercation with Denise occurred. He denied hitting Denise with a hammer or otherwise hurting her.

At trial, the jury convicted Ray for the attempted murder of Denise, first-degree robbery for stealing Denise's purse, first-degree burglary for breaking into Tim's home, first-degree wanton endangerment for threatening to kill Tim with a hammer, and violation of an EPO/DVO. He was sentenced to sixty-five years.

Additional facts are discussed below as necessary.

ANALYSIS

Ray asserts two alleged errors before this Court. First, that the trial court erred by denying two of his directed verdict motions. And, that his sentencing phase was unfairly tainted by incorrect information regarding parole eligibility.

I. DIRECTED VERDICT ISSUES
A. PRESERVATION

Ray argues that the trial court committed reversible error when it denied his directed verdict motions for first-degree robbery and first-degree wanton endangerment.

Regarding the first-degree robbery charge, he asserts that the elements of first-degree robbery were not met because his use of force against Denise was not contemporaneous with his theft of her purse. In other words, that he had completed his attack on Denise before forming the intent to steal her purse and before his subsequent completion of that theft.

In addition, he asserts that the elements of first-degree wanton endangerment were not met because simply raising the hammer at Tim, alone, was not sufficient to create a substantial danger of death or serious physical injury.

In response, the Commonwealth asserts that these alleged errors were not properly preserved for our review. As the Commonwealth correctly indicates, this Court has long held that

[a] motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.4

And, when the evidence is insufficient to support one or more, but not all, of the counts, "[t]he proper procedure for challenging the sufficiency of evidence on one specific count is an objection to the giving of an instruction on that charge."5

At trial Ray made directed verdict motions at the close of the Commonwealth's evidence on all of the counts against him except for the count of violating an EPO/DVO.6 Therefore, the Commonwealth asserts, the proper means to preserve Ray's sufficiency of the evidence arguments would have been for him to object to giving a jury instruction on first-degree robbery and first-degree wanton endangerment charges. Review of the record demonstrates that he did not do so, and in fact,...

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