Simpson v. Com., 86-SC-623-MR

• Decision Date: 08 September 1988
• Docket Number: No. 86-SC-623-MR,86-SC-623-MR
• Citation: 759 S.W.2d 224
• Parties: Harold SIMPSON, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 224

759 S.W.2d 224

Harold SIMPSON, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 86-SC-623-MR.

Supreme Court of Kentucky.

Sept. 8, 1988.

As Amended Sept. 22, 1988.

As Modified Nov. 17, 1988.

Frank W. Heft, Jr., Daniel T. Goyette, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Daniel E. Cohen and Michael L. Harned, Asst. Attys. Gen., Frankfort, for appellee.

LAMBERT, Justice.

This matter of right appeal is from the judgment of the Jefferson Circuit Court sentencing appellant to twenty years imprisonment upon his conviction of manslaughter in the first degree. The assignments of error will be addressed in the order of their presentation in appellant's brief.

On the evening of February 17, 1984, appellant and his wife returned to their home from a social function. Upon arrival, they discovered appellant's stepdaughter and William Earl Bibb sitting on the porch. Appellant did not approve of the romantic relationship between his stepdaughter and Bibb and this had resulted in previous altercations between the two men. Nevertheless, the couple was invited inside the home.

Inside the house, appellant and Bibb began to argue. At one point, Bibb told appellant to shut up and appellant responded by telling Bibb not to tell him to shut up in his own home. Appellant then went to his bedroom and returned with a gun. The two men argued further and appellant ordered Bibb to leave. After going outside Bibb looked inside the house and then walked away. As Bibb was leaving, appellant went to the doorway and with the screen door open, fired two shots. After the first shot, Bibb was still standing. As the second shot was fired, the screen door hit appellant's hand. Bibb fell to the sidewalk. His death was caused by a single entry gunshot.

After the shooting, appellant left his home, put the gun in a garbage container, and went to a local bar where he saw and talked with an acquaintance. The acquaintance testified that appellant appeared to be distracted and said he believed he might have shot someone. On advice of the acquaintance, appellant returned to his home, and with his son went to a neighbor's home where his son called the police. After the police arrived, appellant told Officer Ossofsky where he had placed the gun and told the officer that he did not mean to kill Bibb. Other than appellant, the only eyewitness to the shooting was appellant's nine-year-old grandson. According to this child, appellant was standing in the doorway with the screen door open when the shots were fired. After the first shot, he saw Bibb standing and then as the second shot was fired, he saw the screen door hit appellant's hand. He looked to where Bibb had been standing and saw him lying on the sidewalk.

Appellant did not testify at trial. Shortly after the shooting, however, he gave a tape-recorded statement to the police and it was played for the jury. In the statement, appellant said that the shooting was an accident; that he only meant to fire a warning shot and did not intend to kill Bibb. A firearms expert testified that the gun in question was a .357 magnum single-action revolver which must be fully cocked or half-cocked manually before firing. He stated that the force of a door alone would not cause such a gun to discharge unless it had been recocked, but if such were the case, the slamming of a door on a hand holding the gun might cause a reflex action of the trigger finger.

Appellant first contends that the trial court erred in instructing the jury on manslaughter in the first degree. He argues that at most the evidence justified instructions on manslaughter in the second degree and reckless homicide, instructions which were requested by appellant and given by the trial court. In support of his view of the evidence, appellant points to his tape-recorded statement given to the police officer in which he said the shooting was an accident, that he did not intend to kill Bibb, and that he wasn't even shooting at him. He also points to the testimony of a neighbor to whom appellant stated that he did not mean to shoot Bibb, and to the statement he gave to the police at the scene to the effect that he did not mean to kill Bibb. Appellant also relies on the fact that the screen door hit his hand as the second and fatal shot was fired.

We believe appellant's view of the evidence is too restrictive. Evidence was presented that appellant disliked Bibb; that he and Bibb argued inside the house; that he obtained a gun from his bedroom; that he ordered Bibb to leave the house, and even though Bibb complied, he went to the front door and fired the gun twice. In view of the foregoing evidence, we believe the trial court was correct in instructing the jury in a comprehensive manner. While the jury would have been entitled to believe appellant's version of the incident, it was not required to do so. Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983). Evidence was presented from which the jury could reasonably infer that appellant intended to cause the death of Bibb. McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986). The jury is allowed reasonable latitude in which to infer intent from the facts and circumstances surrounding the crime. Peace v. Commonwealth, Ky., 489 S.W.2d 519 (1972). The evidence was more than sufficient to justify instructing the jury on manslaughter in the first degree.

Appellant next contends that the trial court erred in overruling his objection during voir dire examination when the Commonwealth's attorney asked whether the jury would hold the Commonwealth to a higher standard than proof beyond a reasonable doubt. He argues that such constitutes a violation of our prohibition against defining reasonable doubt (Commonwealth v. Callahan, Ky., 675 S.W.2d 391 (1984)) in that it calls upon the jury to think about what constitutes a higher standard than proof beyond a reasonable doubt.

In Commonwealth v. Callahan, supra, we denounced the practice of defining or attempting to define reasonable doubt. We followed the Callahan rule in Commonwealth v. Goforth, Ky., 692 S.W.2d 803 (1985), and in our recent decision, Marsch v. Commonwealth, Ky., 743 S.W.2d 830 (1988). In all of those cases, some attempt was made to use other words to convey to the jury the meaning of "beyond a reasonable doubt." In this case, there was no such effort.

By this we intend no retreat from our previous decisions on this issue. Counsel should be mindful that upon the occurrence of a bona fide violation of the Callahan rule, a reversal will result.

The next issue is whether appellant is entitled to enforcement of a plea agreement which appears to have been approved by the court prior to receipt of the presentence investigation report and formal sentencing. By the terms of the agreement, appellant would have received a sentence of five years upon his plea of guilty to manslaughter in the second degree.

Appellant was indicted for murder. During plea negotiations and on March 26, 1985, the Commonwealth offered in writing to amend the indictment to manslaughter in the second degree and recommend a term of five years imprisonment in return for a plea of guilty. On that same day, appellant entered a "plea of guilty under North Carolina v. Alford," and he and his counsel signed an instrument reflecting the plea. Among other things, the plea instrument recited that the plea was not based on any promise of leniency; that the trial judge was not bound by any agreement between the Commonwealth and appellant; and it disclosed that the maximum punishment for manslaughter in the second degree was ten years imprisonment. As shown by the transcript of the hearing, the indictment was amended in accordance with the agreement, and the Commonwealth recommended imprisonment for five years. During the hearing, however, the court clearly informed appellant that a sentence of up to ten years could be imposed. Next in the record and bearing the same date, March 26, 1985, there appears an order signed by the court and styled "Guilty Plea--Sentencing Postponed." This order recites that on March 26, 1985, the defendant appeared with counsel and withdrew his former plea of not guilty and entered a plea of guilty to the charge of manslaughter in the second degree. ...