Hennemeyer v. CommonwealthHennemeyer v. Commonwealth
On December 17, 1976, movant, Christopher David Hennemeyer, was indicted by the Grand Jury of Pike County, Kentucky, for the following offenses: ten counts of wanton endangerment in the first degree (
On appeal to the Court of Appeals of Kentucky, the judgment of the circuit court was affirmed. This court granted discretionary review on October 24, 1978.
The issues presented to this court are:
“I. The court below erred to appellant’s substantial prejudice and violated appellant’s constitutional guarantee against double jeopardy as well as his right underKRS 505.020 to be free from multiplе prosecutions for the same offense when appellant’s motion to merge six counts of wanton endangerment in the first degree into one offense was overruled.”
II. The appellant was denied his constitutional right to effective assistance of counsel when his court-appointed attorney failed to propеrly conduct a pretrial investigation which resulted in rebuttal which appellant’s counsel was unaware that existed.”
Wanton endangerment is defined by
“A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”
The movant argues that the six counts of wanton endangerment by shooting a rifle into the automobile occupied by Officers Potter and Stepp (Indictment Numbers 2564 through 2569) constitute a continuous course of conduct which manifests only one crime. As such, Hennemeyer contends that the trial court erred in putting him to trial for more than one offense. In support of his argument, he cites
“(1) When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offеnse when:
(c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.”
We need to put the commission of the offеnses in its proper setting. The evidence discloses that the truck in which Henne-meyer and his conf eder ate, Jonathan Woodell, made their first getaway, the 30.30 rifle which was used by Hennemeyer in firing on the police officers, together with its ammunition, and the 1970 blue Ford in which the second escape was attempted were all stolen.
On November 27, 1976, Hennemeyer, a nomad, was about to relieve himself in front of the Pic Pac Market, in Pikeville, Kentucky, and the manager protested. A scuffle ensued and Hennemeyer hurriedly departed in an awaiting truck driven by his male friend, Jonathan Woodell. The police were called and the manager furnished Officers Slone and Runyon, of the Pikeville City Police, the description of the two men and the truck. The officers took out in pursuit of the truck and, within a very short time and after traveling only about four miles, found it wrecked; however, the
The following day, Sunday, November 28, 1976, Trooper Stepp, accompanied by Detective Potter, while traveling south on Highway 23, witnessed a car being driven in an irregular manner. Trooper Stepp made an attempt to stop the car by turning on his blue light and sounding his horn; however, the driver of the car refused to stop or pull over and Trooper Stepp gave chase. While in pursuit and at times with only about fifty feet between the two cars, the mov-аnt, who was a passenger in the fleeing car, leaned out of the right front window and over a period of approximately fifteen minutes fired five shots from a 30.30 rifle at and into the police ear. After each shot was fired, the movant would pull himself back into the car. As the officers would again start closing in on the fleeing vehicle, movant would again lean out of the window, take aim, and fire at the pursuing police. The chase, over a period of four or more miles, ended when the car stopped on Little Robinson Creek Road, where movant and his confederate fled on foot. While fleeing on foot, the movant stopped long enough to fire one shot at the pursuing police, who at this time had also gotten out of their car. The car from which movant fired the shots was a 1970 blue Ford, having a value of some $800 to $1200. It was stolen from Dan Thornberry, Pikeville, earlier in the day and recovered by him on Little Robinson Creek Road when it was abandoned. The officers continued their pursuit on foоt in search of movant and his confederate, who were located in a smoke house near the road. The officers called to the men to surrender and to throw out their gun before them. After several calls, the gun was thrown out and immediately thereafter Hennemeyer and Woodell appeared and surrendered. Their аrrests were made by Trooper Larry Prater, of the Kentucky State Police, about 2:20 p. m. on November 28, 1976.
Following the arrests, Hennemeyer was interrogated by Detective Potter, of the Pike County Police Department. Henne-meyer related the events of the two days with particularity. For example, he told the detective thаt he stole the truck in Marion, North Carolina; that it contained a rifle and about forty rounds of ammunition, some hypodermic needles similar to the kind used on a cattle farm, and some ear decks. He said that when he and Woodell wrecked the truck, they fled into the hills; that he fired the shots to slow the officers down and to increase the distance between them; that he and Woodell kept moving through the night; that when stopping to rest he would cover himself with leaves to keep warm; that around daylight they came out of the hills close to the place where they had left the truck; that they followed the ridgeline to a landfill, thence crossed the road to the railroаd tracks and then fol
With this narrative background, we can consider the propriety of whether the trial court erred in refusing to merge the six counts of wanton endangerment in the first degree into one offense.
Section 13 of the Constitution оf this Commonwealth and the Fifth Amendment to the United States Constitution forbid that a person be twice put in jeopardy for the same offense. Thus, movant argues that since Indictment Numbers 2564 through 2569 constitute only one offense, he was twice placed in jeopardy for the same offense. We need, therefore, to determine whether the сonduct of the movant constitutes one, and only one, offense or whether his conduct constitutes six separate offenses.
The four shots first fired in the direction of the police officers were considered by the trial court as a continuing course of conduct constituting a single offense of wanton endangerment. We fail to find any fault or criticism made by movant to this procedure. The movant contends that the six shots fired at the police cruiser while it was giving chase to the ear in which he was riding also constitute a continuous course of conduct, the same as did the four shots. Therefore, movant opines that they likewise constitute a single offense.
Thе offense of wanton endangerment is a creature of the regular 1974 session of the Kentucky General Assembly. The Penal Code became effective as of January 1, 1975.
“COMMENT — The offense of wanton endangerment is created inKRS 508.060 and 508.070. It imposes criminal sanctions upon conduct which causes substantial risk of death or injury to another person. It is committed despite the fact that no real injury occurs. The conduct that is punishable under this offense would be sufficient to constitute assault (as that offense is defined in the Penal Code) if a physical injury had resulted from the conduct. Since the failure of the defendant in fact to cause injury is fortuitous, it is deemed by the Code only to affect the extent of his sanction. The statutes create two degrees of this offense, the only difference in the two being that the higher degree contemplates the existence of conduct which threatens death or serious physical injury and the lower degree conduct which threatens only non-serious physical injury.
Previous law did not have an offense of this type which had genеral application, i. e., susceptible of commission through any type of conduct. However, there were numerous special types of injury-threatening offenses. Illustrative types of conduct which can be sufficient to support a conviction of this offense are (i) an act of shooting into a dwelling or an occuрied vehicle, (ii) a grossly careless use of firearms or explosives; (iii) the flourishing of a deadly weapon in public; etc.”
1 Palmore and Lawson, Instructions to Juries in Kentucky, Sec. 2.20, p. 78.
The question of when an act or series of acts constitute a single offense or multiple offenses is not new or novel or subject to fixed standards. In
Queen v. Commonwealth,
Ky.,
“The quеstion of when an act, transaction or course of conduct shall be considered to constitute multiple offenses rather than a single offense is one on which the law is unclear, and the answer to which may vary according to a varying legislative intent.”
What was the legislative intent? Was the legislative intent to punish a particular act or to punish a course of conduct? If the intent was to punish a course of conduct, then movant should only be convicted of one offense. On the other hand, if the
In Brickey, Kentucky Criminal Law, Section 9.07, in discussing wanton endangerment, the author writes:
“The Penal Code flеshes out the pattern of assault offenses with a new concept: wanton endangerment. This is designed to provide criminal sanctions when an actor has engaged in wanton conduct but has caused no injury. Wanton conduct is punishable with respect to other crimes against the person only if it results in the death of the victim or physical injury. Absent such a result, the actor’s conduct is not punishable no matter how dangerous it is. It cannot constitute an attempt because one cannot attempt to act wantonly. There must be intent to commit a crime to be guilty of a criminal attempt.”
In Commonwealth v. Colonial Stores, Incorporated, supra, this court discussed and cited prior opinions dealing with single and multiple offenses, after which it wrote, “ * * * we shall say that our examination and analysis of the cases has disclosed no basic theory or rule for determining when there is only one offense and when there are multiple offenses.” The court went on to say:
“We shall not undertake here to lay down any general rule or rules applicable to all situations. We shall restrict ourselves to an effort to determine what the legislature meant in the particular statute here in question, as regards the particular facts here involved.”
We shall follow that procedure in the instant case.
The Kentucky statutes dealing with the offenses of assault are designed to protect each individual from defined physical abuse, not only for protection from defined actual physical abuse but protection from defined attempted physical abuse. There were instances in our framework of designed criminal assaults and attempted criminal assaults prior to January 1, 1975, where a victim found himself aggrieved within a criminal statute defining elements of his complaint without criminal remedy. For instance, in those offenses absent a trauma, the сonduct of the accused, no matter how dangerous, was not criminally punishable. The wanton endangerment statute,
The movant’s complaint that by reason of his trial counsel’s failure to learn of a confession he had made, he was denied his constitutionаl right to effective assistance of counsel is without merit.
The decision of the Court of Appeals of Kentucky is affirmed.