Smith v. Com.

• Decision Date: 03 September 1987
• Docket Number: No. 86-SC-43-MR,86-SC-43-MR
• Citation: 737 S.W.2d 683
• Parties: Bill Dee SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 683

737 S.W.2d 683

Bill Dee SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 86-SC-43-MR.

Supreme Court of Kentucky.

Sept. 3, 1987.

Rehearing Denied Nov. 5, 1987.

Daniel T. Goyette, Jefferson Dist. Public Defender, Frank W. Heft, Jr., Louisville, for appellant.

David L. Armstrong, Atty. Gen., Gerald Henry, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Justice.

The appellant was convicted of wanton murder and sentenced to imprisonment for a period of 25 years. He claims on appeal that there was no evidence of wantonness and that the trial court erred by giving an instruction on wanton murder. He further claims that the trial court erred in refusing to instruct on first-degree manslaughter.

The victim, Bill Dupin, was shot and killed in a deserted spot underneath the K & I Bridge on the Ohio River bank in Jefferson County, Kentucky. Shortly thereafter, the appellant gave a statement to the police in which he admitted the shooting. Edna Thompson, a woman with whom he was living, also gave a statement that appellant did the shooting. Both statements were recorded and transcribed.

In his statement to the police, appellant described the shooting as follows:

"Smith Okay. The best I can remember is ... the best I can remember is she, she got her own way down to Bill Dupin's. I can't remember taking her down there. And when I went down ... I went down to pick her up. He was gone, but she was at Rosetta's and that's when I picked her up and I ... that's when I asked her if she could get him under the bridge, K & I Bridge where the main road is. She said she didn't know. She guess she could. She didn't really know. So, that's, that's when I took ... I went down under the K & I Bridge with her and showed her where I would be for her to bring him if she could. Okay. And then, that's when ... when I took her back and dropped her off at Aunt Rosetta's or I dropped her off around the corner. And uh, I went on back down. I waited for them to come down there. I was ... that's when I was waitin' down there for about a half an hour for them to come down there. Then, they show up. I'm waitin' in the ditch just kind of side there, alongside where they pulled up in the truck. And then, and then, that's when I waited a couple of minutes and then I went up the side, behind at the side of the truck on the driver's side where he was. And that's when she shined the flashlight in my eyes and opened the door. He had his pants down and I already had my gun pointed at him. And that's when he scooted over towards the middle. Edna done jumped out of the truck and took off through the fields or down the path out there. And so, and so, he scooted over towards the middle of the seat and he reached inside of his coat, like I guess he had a gun or something. That's what I thought. And so, I shot. And then, he fell over and I guess I shot again. He rolled out of the truck. So, I walked around the truck I guess. I don't know whether I went around or through it, and I shot again. I don't know how many times. It could've been once or twice. I don't really know how many times. And then, I left and I caught up with Edna on foot and got her and went back to the car. Got in the car and left. I went down to the filling station or the store and got a coke. And I went on down to River Road and threw the gun away out, out in the river. And I dropped Edna back off at Aunt Rosetta's. I dropped her off around the corner from Aunt Rosetta's. Then, I went back down. I told her I was gonna get a drink or something. And then, I went back down to the scene where the murder happened. I tried to pick Bill Dupin up and put him back in the truck. I couldn't lift him. So, I drug him over the side of the cliff towards the river. And I started his truck and backed it up and put it in gear and let it run over the side. And I left. I came back, picked Edna up at her Aunt Rosetta's and her things and came back home.

"Wilson Okay.

"Smith I, I left the part where I took the twenty-six cents that fell out of his pocket and his billfold, which it only had his driver's license and another card. A piece of paper or something. There was no money in the billfold.

"Wilson Okay. Bill, let me ask you. Why did you kill Bill Dupin?

"Smith Because I was tired of him coming around Edna with his tolu trying to sell it and get it and to get, get her to go to bed with him for the tolu, cause she's pregnant with my baby. And I was plannin' on marrying her. I just got tired of it. Tired of seeing him do all these things, plus he's been taking other women and doing the same thing down the same places. I just got tired of ... tired and mad. I guess halfway crazy whenever I just seen him around there. And I knew, knew he was gonna be doing something like that."

Edna Thompson, in her statement, admitted being with Dupin under the bridge and described the shooting by appellant.

At the trial the appellant and Edna Thompson each repudiated their statements and claimed they were pressured by the interrogation into making untrue statements. Both denied any connection with the murder.

We see no reasonable basis in the evidence to justify an instruction on first-degree manslaughter. Such an instruction is appropriate when there is evidence to indicate that a homicide was committed while acting under extreme emotional disturbance. Appellant contends that his discovery of Dupin, with his trousers down in the truck with Edna, caused him to be emotionally disturbed, half-crazed as he put it.

We have defined extreme emotional disturbance as follows:

"Extreme emotional disturbance may reasonably be defined as follows: Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be."

McClellan v. Commonwealth, Ky., 715 S.W.2d 464 at 468-469 (1986).

Of course the appellant at trial denied the shooting. The jury did not believe him, but obviously did believe the statements that he and Edna made to the police shortly after the homicide. Nothing in those statements indicate a temporary state of mind or one so disturbed or inflamed as to overcome appellant's judgment and cause him to act uncontrollably. His conduct was planned because he was "tired" of the way the victim had been behaving. We find no claim by the appellant that he was unable to control his actions. It is not the obligation of the Commonwealth to prove the absence of an extreme emotional disturbance. Wellman v. Commonwealth, Ky., 694 S.W.2d 696 (1985).

The appellant's claim that the jury should not have been instructed on wanton murder poses a more difficult question. K.R.S. 501.010 establishes four culpable mental states. They are: (1) intentionally; (2) knowingly; (3) wantonly; and (4) recklessly. K.R.S. 501.020 defines these mental states as follows:

"(1) 'Intentionally'--A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.

"(2) 'Knowingly'--A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.

"(3) 'Wantonly'--A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

"(4) 'Recklessly'--A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

With respect to criminal homicide, a person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person, or when under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. K.R.S. 507.020.

A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person (K.R.S. 507.040) and guilty of reckless homicide when with recklessness he causes the death of another person (K.R.S. 507.050).

In homicide prosecutions a defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury to rationally find him guilty of the lesser-offense and acquit him of the greater. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

In Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1982), we held that it was improper to instruct on intentional murder, and alternatively on wanton murder, when all of the evidence indicated that it would be clearly unreasonable for the jury to believe that ap...