Mark Tatum v. Commonwealth of Kentucky
2016 SC 000510
| Ky. | Dec 12, 2017Background
- Mark Tatum, who has autism spectrum disorder and a hoarding disorder, lived next door to David and Su Allen; repeated code complaints were filed by Mr. Allen about Tatum's property.
- Between April and May 2012, Allen observed Tatum allegedly shooting at exterior items (gutter, walkway light, exhaust fan); Tatum was charged for the May 6 shooting at the exhaust fan (wanton endangerment) and later shot and killed Mr. Allen on May 31, 2012 (murder).
- A jury convicted Tatum of murder, first-degree wanton endangerment (for the May 6 incident), and retaliating against a participant in the legal process; he received a total 35-year sentence and appealed.
- On appeal Tatum argued the trial court erred by: refusing a reckless-homicide instruction; denying a directed verdict on first-degree wanton endangerment; admitting irrelevant/unduly prejudicial evidence (mug shot, marksmanship certificate, silhouette target); and excluding expert testimony about his mental state (EED).
- The Kentucky Supreme Court affirmed the murder and retaliation convictions, reversed and vacated the wanton endangerment conviction (May 6), and found evidentiary errors harmless; it also upheld exclusion of expert opinion about Tatum’s state of mind at the shooting.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Tatum) | Held |
|---|---|---|---|
| Whether jury should have been instructed on reckless homicide as a lesser-included offense | No; evidence showed intentional or wanton conduct so reckless homicide instruction unnecessary | Yes; expert testimony about autism/hoarding could support recklessness rather than intent/wantonness | Denied — no reckless-homicide instruction warranted (evidence undisputed that Tatum fired multiple shots) |
| Whether directed verdict was required on first-degree wanton endangerment (May 6 exhaust-fan incident) | Evidence (BB/pellet shooting at exterior) supported wanton endangerment | Shooting a BB/pellet at an exterior fan was not the extreme-indifference, immediate-vicinity conduct that statute requires | Granted — directed verdict required; conviction reversed and vacated |
| Admissibility of mug shot, marksmanship certificate, black silhouette target | Probative of demeanor and preparation/skill/state of mind | Highly prejudicial/irrelevant; lacked foundation or connectedness to crime | Mug shot and certificates/target admission were erroneous but deemed harmless; bag of accessories was properly admitted |
| Exclusion of mental-health experts testifying to defendant's state of mind at time of shooting (EED) | Experts could not reliably opine about moment-of-offense state absent admissible factual basis | Experts relied on testing and interviews showing autism and potential reaction to stress; testimony essential to EED defense | Exclusion affirmed — no admissible, non‑hearsay basis supported expert opinion about EED at time of shooting; allowing it would permit testimony based primarily on self-serving statements without cross-examination |
Key Cases Cited
- Osborne v. Commonwealth, 43 S.W.3d 234 (Ky. 2001) (standard for instructing lesser included offenses)
- Wolford v. Commonwealth, 4 S.W.3d 534 (Ky. 1999) (instruct on all degrees of homicide when state of mind is not conclusively established)
- Swan v. Commonwealth, 384 S.W.3d 96 (Ky. 2012) (firing into occupied areas as prototype of first-degree wanton endangerment; limits on "immediate vicinity")
- Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (directed verdict standard on sufficiency of evidence)
- Redd v. Commonwealth, 591 S.W.2d 704 (Ky. Ct. App. 1979) (admissibility framework for arrest photos)
- Lasure v. Commonwealth, 390 S.W.3d 139 (Ky. 2013) (limits on expert testimony based on defendant's out-of-court statements for EED defense)
- Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998) (expert opinion cannot bootstrap a defense via inadmissible defendant statements)
- Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) (EED instruction requires definite, non-speculative supporting evidence)
- Hall v. Commonwealth, 468 S.W.3d 814 (Ky. 2015) (cumulative evidence and probative worth analysis)
- Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (harmless-error standard for nonconstitutional evidentiary errors)