Willis v. Commonwealth
| Decision Date | 18 December 2020 |
| Docket Number | NO. 2019-CA-0720-MR,2019-CA-0720-MR |
| Parties | KENNETH DWAYNE WILLIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
On July 12, 2016, Willis got high with some of his friends at his home. While there, he received a text message from Ashley Spriggs. Willis considered Spriggs "like a niece" and asked her to visit and to bring her friend. Spriggs and her friend, Brittney Wells, soon arrived. Before Willis's other friends left, he and Spriggs and Wells used heroin.
After Willis snorted heroin, he went to his room to sleep. Before falling asleep, he put the drugs on a plate next to his bed, covered it with a newspaper and a book, then put his gun on top of the book. When he woke up he noticed the book was moved and his drugs were gone. He picked up his gun and asked Spriggs who had been in his stuff. She did not know, but suspected Wells took it.
Willis gestured to Wells, with the gun in his hand, to join Spriggs on the floor at the foot of the bed. The women and Willis began arguing. While holding the gun, Willis pulled the slide and allegedly emptied the clip of the gun because he saw one spent shell casing on the floor. He believed he successfully emptied the chamber and turned back toward the girls.
He approached the women demanding his drugs, but they both proclaimed their innocence. Willis swung his arm back with the gun in his hand, but when his arm came forward, the gun discharged and shot Spriggs. Willis sawSpriggs' head go back but did not realize immediately that he had shot her. After realizing what happened, he and Wells took Spriggs to his car and drove her to the hospital. Wells left, and Willis placed Spriggs on the sidewalk by the entrance of the hospital and drove away. Spriggs died.
Police arrested Willis the next day and a grand jury indicted him for murder, possession of a handgun by a convicted felon, and possession of a controlled substance, first degree. The circuit court severed the handgun charge, but Willis went to trial for murder and possession of a controlled substance. At trial, the circuit court granted a directed verdict on the possession of a controlled substance charge, and the jury convicted Willis of reckless homicide and recommended a five-year sentence. This appeal followed.
Willis contends the circuit court erred by: (1) failing to instruct the jury on a mistake of fact defense; (2) giving a reckless homicide instruction over the parties' objections; (3) failing to direct a verdict on the murder charge; (4) failing to disclose his prior criminal convictions during the penalty phase; (5) failing to admonish the jury after the Commonwealth improperly commented on his right to remain silent; and (6) failing to dismiss the indictment due to material omissions made by the detective before the grand jury. We take each argument, in turn.
Willis believes the circuit court erred by failing to instruct the jury on a mistake of fact defense. We disagree.
The circuit court must instruct the jury upon every theory reasonably supported by the evidence. "[E]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it." McAlpin v. Davis Const., Inc., 332 S.W.3d 741, 744 (Ky. App. 2011) (quoting Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957)). The same rule applies in criminal cases. Thomas v. Commonwealth, 170 S.W.3d 343, 348-49 (Ky. 2005).
However, in deciding whether to give a requested instruction, the circuit court must decide "whether the evidence would permit a reasonable juror to make the finding the instruction authorizes." Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013). Under Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), a circuit court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. "A decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom." Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). "Because such decisions arenecessarily based upon the evidence presented at the trial, the trial judge's superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard." Id. (footnote omitted).
Willis believes his testimony at trial was enough to warrant a mistake of fact defense because he demonstrated he did not have the culpable mental state to commit murder.
A mistake of fact defense is provided under KRS1 501.070.
"[A] mistake of fact is not a defense to a charge unless the mistake would support a defense of justification or otherwise show that the charged offense . . . could not have been committed." Mullikan v. Commonwealth, 341 S.W.3d 99, 107 (Ky. 2011) (internal quotation marks and citations omitted).
A jury instruction on a statutory defense is only required if the evidence introduced would permit a reasonable juror to conclude the defense exists. Conyers v. Commonwealth, 530 S.W.3d 413, 431 (Ky. 2017). A mistake of fact instruction is only justified if: (1) evidence is presented at trial that would allow the jury to infer that the defendant's actions resulted from a reasonable and bona fide mistake of fact; and (2) the mistake must negate the applicable mental state of the charged offense. Cheser v. Commonwealth, 904 S.W.2d 239, 242 (Ky. App. 1994), overruled on other grounds by Walker v. Commonwealth, 127 S.W.3d 596 (Ky. 2004). The evidence must justify a Id. (citations omitted).
Here, Willis admitted to pointing the gun at Spriggs and Wells and seeing a shell casing on the floor. However, the shell casing was of a different caliber and came from a different gun. Additionally, Willis was under the influence of heroin and was freshly awakened after having passed out. There was also evidence introduced that tape was on the gun to hold the magazine in place and a piece of tape covered the safety. And, if Willis thought the gun was unloaded, it is reasonable to believe more than one shell would have been seen onthe floor. All in all, there is not enough evidence to justify the instruction. We find no error.
The Commonwealth tendered a jury instruction on reckless homicide but later withdrew the request, stating testimony did not support the instruction. Willis also objected to the instruction. Regardless, the circuit court gave the instruction to the jury, believing the testimony was sufficient to support such a finding. Ultimately, the jury found Willis guilty of reckless homicide.
Reckless homicide is defined as recklessly causing the death of another. KRS 507.050(1). A person acts recklessly when he "fails to perceive a substantial and unjustifiable risk that the result will occur[.]" KRS 501.020(4). 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." Id.
There are two theories under which a defendant can be convicted of reckless homicide: (1) the defendant acted without an intent to kill but with an awareness and conscious disregard of a substantial and unjustifiable risk that his action would result in the victim's death, KRS 507.050(1); KRS 501.020(4); and (2) the defendant acted either with or without an intent to kill but under an actual but mistaken belief that the circumstances then existing required the use ofphysical force (or deadly physical force) in self-protection, and with an awareness and conscious disregard of a substantial and unjustifiable risk that such belief was mistakenly held. KRS 501.020(4); KRS 503.120(1). Saylor v. Commonwealth, 144 S.W.3d 812, 818-19 (Ky. 2004). The evidence clearly supports a jury instruction based on the first of these two theories.
We believe the circuit court was well within its discretion to instruct the jury on reckless homicide. Although Willis contends he thought the gun was unloaded, it does not negate his reckless behavior. His conduct demonstrated he "failed to perceive a substantial and unjustifiable risk that his conduct would result in the death of another." He admitted to holding the gun, swinging the gun toward the girls, and wanting to scare them. This conduct, at the very least, was reckless, and a reasonable juror could agree.
Willis also believes the circuit court erred by failing to grant a directed verdict on murder. We disagree.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to...
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