Houston v. Commonwealth

the use statute fairness. “Condemned to to the value of human life. is indifference culpa- words, expect mathematical language This describes a kind of we can never in bility degree Payne in but not v. certainty language.” differs from our 867, ordinary kind from the recklessness re- Ky., 623 quired manslaughter. (1981) Rockford, (quoting Grayned City 2300, 104, 110, 92 S.Ct. U.S. Id. 934 P.2d at 48. (1972)). L.Ed.2d 222 that, expect- is “[a] The Court concluded decipher many phrases difficult without ed opinion phrase that the are of We definitions, receiving specific such as the indifference to human life” are “extreme phrase term ‘reasonable doubt.’ The ‘ex- understanding, of common and further words human life’ treme indifference to the value of Commentary to the Penal Code unconstitutionally vague is not so as to be sufficiently type forth the of conduct sets void.” Id. a conviction. that will sustain wanton murder Dow, Similarly, in State v. 126 N.H. such, Assembly not re As the General Supreme 489 A.2d 650 Court of quired precise a definition of the include Hampshire New held that the words “ex 507.020(l)(b). phrase within KRS It is the treme indifference to the value of human life” determine, duty of the trier of fact to governing contained statute were not circumstances, given whether a defen unconstitutionally vagueness. void for “The culpable to the mental dant’s conduct rises words ‘extreme indifference to the value equivalent state to intentional murder. easily They human life’ are are understood. Therefore, statutory we conclude that equivalent of what is sometimes referred 507.020(l)(b) language is question murder,’ ‘depraved to as heart has chal sufficient withstand constitutional part long been a of the law.” Id. 489 A.2d at lenges vagueness separation of for both also, 651; State, see Waters v. 443 A.2d 500 powers. (Del.1982) (“the ‘cruel, words wicked and de Appellant’s clearly jus- in this case conduct praved indifference to human life’ are words his conviction for wanton tified murder. commonly accepted meaning” within a that is sentence of the Cir- conviction and Jefferson unconstitutionally vague); People v. Po cuit is affirmed. Court plis, 30 N.Y.2d 330 N.Y.S.2d (1972) (statute proscribing N.E.2d 167 con All concur. “evincing depraved duct to hu indifference sufficiently

man life” is definite and the kind proscribed sufficiently conduct laid out sanction.) penal

to sustain a valid strong presumption

There is

validity of statutes. United States v. Nation aka Terrell William Terrell HOUSTON Dairy Corp.,

al Products 372 U.S. Pauling aka Michael Lionel S.Ct. 9 L.Ed.2d 561 A criminal Morris, Appellant, requires an statute which either forbids or vague act terms so that men of common intelligence guess meaning must at its lacks Kentucky, COMMONWEALTH process of law. Thomas the essential of due Appellee. Commonwealth, Ky.App., determining accepted “The test No. 96-SC-993-MR. required precision statutory language Supreme Kentucky. Court of imposing liability criminal is whether the lan guage conveys sufficiently warning definite Sept. 1998. proscribed as to the conduct when measured understanding practices.” common Commonwealth, Ky., Sasaki v. (1972). However, all that is Lewter, Appellant. Lexington,

V. for Gene III, General, Chandler, Attorney A.B. Jr., Attorney Floyd, Samuel J. Assistant General, Division, Appellate Office General, Frankfort, Attorney Ap- for pellee.

OPINION OF THE COURT Houston, Appellant, Terrell William Fayette of various convicted in Circuit Court persis- being a drug related offenses and of felony degree. in the tent offender second twenty-four He was sentenced to a total of appeals to years imprisonment and he this right. Court as a matter of regards the Appellant’s first claim of error upon penalty imposed enhancement of the 218A, Chapter pursuant him KRS Act. Controlled Substances cocaine, trafficking in convicted of a Class C felony Kentucky law. 218A.1412(2)(a). This offense was enhanced felony pursuant B to KRS Class a. 218A.992, penalty en- provides posses- when the defendant is hancement related sion of a firearm at the time of offense: penalty apartment, they ap- 218A.992. Enhancement of when entered pellant running living of a firearm at the time of room to the from bedroom, apartment commission offense. a room the where no (1)Other guns fingerprints were were found. No provisions notwithstanding, of law any guns. any person found on who is convicted of viola- chapter tion who at the time of of this was possession

the of the in commission Contrary appellant’s contention firearm, shall: however, physical possession actual of a fire (a)Be (1) jury arm is not for a to find that penalized one more se- class verely provided penalty pro- possession purposes in has of a firearm for than the one Rather, pertaining vision to that offense it is a of KRS 218A.992. we hold that a felony; drug penalty may or un violation be enhanced (b)Be der if the violator has con KRS 218A.992 penalized as a D if the Class felon possession structive of a firearm. as Since offense would otherwise be a misde- early Kentucky as courts have utilized meanor. concept possession the of constructive to con (2)The provisions of this not section shall nect defendants to In controlled substances. apply ato violation of KRS 218A.210. Commonwealth, Rupard Ky., v. 475 S.W.2d trial, According Lexing- to the evidence at (1972), pos 473 of defendants were convicted police ton officers obtained a search warrant marijuana session of the intent to dis apartment for an based on a confidential tribute or sell after it was determined purchased informant’s disclosure that he had they possession drugs had constructive of cocaine at that Appellant location. was the stored in an abandoned farmhouse. The only person present apartment at the when Commonwealth, Ky., Court in Franklin v. police executed the search warrant. The (1972), denied, 490 S.W.2d 148 cert. 414 U.S. police quantities of crack cocaine in the (1973), 94 S.Ct. 38 L.Ed.2d 108 held kitchen, room, living in a bedroom of the that the evidence was not sufficient to convict apartment. They also found firearms in the possession a woman of where it was not living kitchen and the room. told proved frequented at trial that she a bam police that he was from Detroit and that he However, drugs where were stored. in that only in Lexington couple had been for a of case, “general the Court also noted the rule police weeks. He told that neither crack the relating possession dangerous drags the apartment cocaine nor the firearms possession is that the need not be exclusive. him, belonged to but that the contraband persons may possession Two more be in belonged people to other from Detroit who the same at the same time and this staying were also there. possession necessarily does have to be Appellant argues that he should have Id., possession.” physical actual at 150. See granted been a directed verdict on the issue Commonwealth, Lindsay Ky., also: v. 500 possession of a firearm. He asserts that S.W.2d 786 actual, physical because he pos did not have gun ap Kentucky session of a a directed verdict courts have continued utilize propriate holding possession concept Common the constructive to con- Benham, Ky., illegal wealth v. 816 186 drugs S.W.2d nect defendants to and contra- (1991). Indeed, Commonwealth, appellant Ky., did not have actual In Leavell v. band. 737 (1987), physical possession of the firearms defendant who had the this case—the key marijuana found three firearms to a vehicle’s trunk wherein apartment, appellant’s per but on none was later found held to be in construc- thirty-eight possession drug. son. A loaded caliber In revolver tive of that the more kitchen, Clay Ky.App., was found on a bottom shelf in the v. recent case (1993), twenty-two Appeals loaded caliber revolver was found 867 S.W.2d 200 the Court of kitchen, top similarly although on a shelf in the was not loaded held cocaine twenty-two handgun person, caliber was found on a found on the defendant’s the defen- living drug by TV stand room. When the dant could be connected 1997)(“Possession theory possession. purposes a firearm for [of of constructive See also: Commonwealth, Ky., possession being Dawson a felon of a firearm] (1988); Hargrave Ky., constructive.”); may be actual or Common- denied, cert. U.S. Woody, Pa.Super. wealth 679 A.2d 821, 108 1996)(“We S.Ct. 98 L.Ed.2d 43 (Pa.Super., find that a reasonably appellant infer ... could long Although possession constructive has possession of maintained constructive drugs, been used to connect defendants to we drugs firearm and recovered from his vehi- Kentucky have found no cases which utilize cle.”); Reyes, State v. 671 A.2d concept possession constructive con (R.I., 1996)(Appellate court held that trial However, we nect defendants to firearms. judge properly “reasoned that defendant had jurisdictions accepted note that other have weapon.”); constructive may person the idea that a have constructive Commonwealth, 1, State, Va.App. v. 26 492 Archer possession Argo of a firearm. v. 53 1997)(“Proof 826, (Va.App., 103, 18, 20 S.E.2d 831 Ark.App. (Ark.Ct.App., 1996) (“A possessed gun appellant the found under the showing possession of constructive mattress, actually constructively, prove ... to a is in either is sufficient defendant firearm.”); State, support possession Simpson v. was sufficient to his conviction for (Ga. 143, 115, by Ga.App. possession 444 117 of a firearm a convicted fel- 213 S.E.2d 1994)(“... on.”) App., previously this court has possession held that constructive is sufficient possession Whether the definition of in prove subject to a violation of the concept possession the of constructive cludes felon].”); [possession by of firearm a State v. apparently point disagreement a has been 1997) 1, (Iowa,

Eickelberg, 574 6 N.W.2d Compare Clay in the lower courts. v. Com (Defendants’ properly sentences enhanced monwealth, Ky.App., 867 S.W.2d 200 though under statute even defendants did not (1994)(constructive possession enough is to actually possess there was firearms because home) drugs connect her defendant “support finding sufficient evidence to the Commonwealth, Ky.App., with Powell v. 843 posses that defendants were in immediate (1992)(aetual possession 908 is re S.W.2d partici sion or control of the firearms” while quired drugs). To to connect defendant offense.); Neeley, pating in a State v. conflict, resolve this we hold for offenses (“... 1997) 443, (La.App., 704 So.2d 447 con 218A, concept arising KRS of “con opposed to actual possession, structive as possession” applicable. Clay, su structive satisfy posses possession, is sufficient to Leavell, pra; supra; Rupard, supra. To the possession sion element the crime [of Appeals opinion in Powell extent the Court of felon].”); People v. firearm convicted Commonwealth, Ky.App., v. 843 S.W.2d 908 Williams, 607, 89, 212 Mich.App. 538 N.W.2d (1992), contra requires actual 1995) (“Possession (Mich.App., a fire [of 218A, purposes Chapter band for the may may be actual or constructive and arm] it is overruled. evidence.”); proved by be circumstantial believe that a directed verdict was not We State, 848, 544, 111 Nev. 899 P.2d Jones in this case because a reasonable warranted 1995) (“ (Nev., permit ... these actions juror beyond a reason- could have believed knowledge requisite to find the ted appellant able doubt that had constructive necessary pos and control for constructive possession of the firearms in this case. Com- Messer, weapon.”); session of a State v. Sawhill, Ky., 660 monwealth v. (Ohio 1022, 1025 App.3d 667 N.E.2d Ohio at trial Evidence was introduced 1995)(“ may App., firearm] ‘Possession’ [of juror’s support a reasonable constructive.”); which would Hill v. be either actual or appellant had constructive State, conclusion (Okla.Crim.App., 898 P.2d the firearms. At the scene possession of 1995)(“Lacking any evidence direct appellant police that he had handled one told cocaine or the actually possessed either the fingerprints firearms and that his constructively gun, prove must he the State it; Wells, according testi- each.”); might be on 147 Or. possessed State v. trial, fully mony guns each of the was App. (Or.App., at 935 P.2d him might not arrest thought the officers loaded; apparently he guns and the were easily with them. He did plain cooperated were accessible. he view and cocaine for guarding assert that he that he was Appellant next contends his friends. his cousin and to an instruction on the offense entitled facilitation and that the trial court criminal judge duty Although a trial has refusing reversible error committed on the whole prepare give instructions give such an instruction. case, including lesser included law of the arrived at 771 arresting officers When supported by the evi are offenses which Avenue, Apartment to execute Chiles dence, Ky., 887 Swain warrant, Appellant alone in the search (1994), duty does not the officers entered apartment. When theory on a with no require an instruction living from the apartment, Appellant ran evidentiary Barbour v. Com foundation. appre- to the bedroom where he was room monwealth, Ky., 824 S.W.2d gave a false hended. He then the officers grounds, overruled on other McGinnis baggie of plastic name. The officers found a (1994); Ky., 875 S.W.2d 518 room; suspected marijuana living Commonwealth, Ky., 303 S.W.2d 903 Neal v. residue, plastic seven baggie of cocaine (1957). An instruction on a lesser included shelf, cocaine on a and more “rocks” crack if, required only considering the offense is kitchen; in crack cocaine a bottle in the and evidence, totality jury might have of the pieces several of crack cocaine on dresser guilt a reasonable doubt as to the defendant’s in the gym bag bedroom under a blue be- offense, greater yet and believe be longing Appellant. Several items yond guilty a reasonable doubt that he is paraphernalia throughout were found the lesser offense. v. Common Wombles apartment. The presented was with (1992). wealth, 172, 175 Ky., 831 S.W.2d It is Appellant two theories as to how came to be presence axiomatic that “one’s mere at the apartment alone in this with these controlled scene of a crime is not evidence that such one paraphernalia. substances and Both theories in committed it or aided its commission.” Appellant, emanated from himself. Neither Ky., Rose v. theory proposition Appel- included the that any In the absence evidence “guarding” lant was the contraband for oth- Appellant guarding was the contraband ers. others, presence for his mere at the scene arrest, Shortly Appellant after his advised supported would not have a conviction of part the officers that he organiza- of an theory. criminal facilitation on that tion Lexington which came to from Detroit to Even if there had been evidence that cocaine, sell already that he had all of sold guarding drugs para and him, belonged the cocaine which and that others, phernalia for such would not have drugs paraphernalia and him to an instruction on criminal entitled apartment belonged to other individuals from The facilitation as a lesser included offense. Detroit. He did not assert that he was support guilty fact that the evidence would guarding the contraband for other these uncharged verdict on a lesser offense does drug dealers. not establish that it is lesser included of trial, Appellant apart- At testified that the charged fense of the offense. Whalen cousin, belonged ment to his cousin his Commonwealth, Ky.App., 891 S.W.2d 86 weapons, two friends and owned the (1995); Ky.App., 768 Hart v. drugs, drug paraphernalia, and and S.W.2d 552 The definition of a lesser he did not know there was cocaine under included offense is contained in KRS gym bag. his own He he knew that stated 505.020(2),viz: selling his cousin and his friends were co- may A of an of- apartment, defendant be convicted caine out of the but denied that cocaine, any that is included offense sold himself. He ex- fense he had charged. An formally which he is arresting he told the officers plained that only included when: selling because is so cocaine that he had been (a) by proof (Ariz.1984); Garcia, It is established of the same State v. Ariz.

or less all required than the facts (Ariz.Ct.App.1993); People P.2d 498 Luther, establish the commission of the of- 61 N.Y.2d 472 N.Y.S.2d charged; fense or (N.Y.1984); generally N.E.2d 1099 see R. Fortune, Kentucky Lawson and W. (b) It attempt consists of an to commit (LEXIS 1998). 7-5(c), § p. Law Com- charged the offense or to commit an (Tenn. Hicks, pare State v. therein; offense otherwise included Crim.App.1992), in which the Tennessee or Appeals Court of Criminal declined to re- (c) It charged differs from the offense verse a conviction under its facilitation stat- only respect in the that a lesser kind ute, (T.C.A.) § Ann. Tenn.Code 39-11-403 culpability suffices to establish its an obtained under indictment commission; or murder in the context of what amounted to a (d) It differs from charged the offense prison However, riot. § under T.C.A. 39- only respect in the that a less seri- 11-403, facilitation is committed furnish- injury injury ous or risk of to the ing “substantial assistance the commission person, property public same in- felony,” aof which is more akin complicity terest suffices to establish its com- as defined KRS 502.020 than criminal fa- mission. 506.080(1). cilitation as defined in KRS (b), (e) (d) Subsections have no Court Hicks viewed the case as if the Thus, application to the facts of this case. defendants been princi- had indicted as both inquiry is whether the inchoate offense of pals accomplices. criminal by proof facilitation is established opinion, however, are of the We we need the same or all less than the facts not make our decision on the basis of charged establish the commission of the of § whether T.C.A. 39-11-403 is a lesser trafficking of possession fenses or of a included offense in this case. evi- The Perry controlled substance. v. Common dence this case shows there con- was a wealth, (1992). 268, Ky., 839 S.W.2d 272 The among cert of action the appellants to in- trafficking possession offenses of in or of a injury upon flict and death the victim ... require proof controlled substance that the appellants Each of the responsible for defendant, himself, knowingly unlawfully his own conduct and was culpably respon- charged committed the offense. KRS sible for the conduct of others.... 218A.1412; KRS 218A.1415. The offense of 835 at S.W.2d 36. requires proof criminal facilitation that some one other than the defendant committed the consistently We have held that criminal defendant,. object knowing offense and the facilitation can be a lesser included of offense person committing that such intended charging an indictment complicity, “because offense, provided person to commit that that it has the same elements except the that opportunity with the means or to do so. required state of mind for its commission 506.080(1). Thus, criminal facilitation KRS [knowledge] culpable is less than the state proof than requires not of the same or less required mind for [intent] commission prove charged all the facts [complicity] other offenses.” Luttrell trafficking possession in or offenses Commonwealth, Ky., 554 S.W.2d 79 substance, proof but of additional controlled (1977); see also Chumbler v. Commonwealth, fortiori, A it completely different facts. Ky., (1995); 905 S.W.2d 499 Webb v. when the is not a lesser included offense Commonwealth, Ky., 904 S.W.2d 229 committing charged either defendant is (1995); Commonwealth, Skinner v. Ky., cf. object offenses. (1993). 864 S.W.2d 298-99 We need not whether, under gener- Kentucky law, with the decide accord

This conclusion a con- complicity can facili- viction be states with criminal of those obtained al view charging an is not a lesser indictment offense defendant only statutes tation as a E.g., principal, but object offense. see Daugherty of an included offense Common- wealth, Ky., P.2d 946 Gooch, 678 572 Ariz. S.W.2d 861 (1978); State Ap- fact aids such request an instruction on that of the crime and pellant did person to commit the crime. offense. a lesser included of- facilitation is only Kentucky holding case that crimi-

The trafficking in cocaine. Farris v. fense a lesser included offense of nal facilitation is Ky.App., 836 S.W.2d object Farris v. an offense is Common- (1992). wealth, In Ky.App., Farris, did, indeed, Appeals the Court Commonwealth, Ky., In Webb v. bald assertion that criminal facili- make the (1995), stated: this Court S.W.2d offense of traffick- tation is a lesser included a lesser-included offense An instruction on ing in a controlled substance. Id. at 454. given should be the evidence is such However, only authority cited for juror a reasonable could doubt proposition was Jackson v. charged, guilty defendant is of the crime Ky., which does not guilty of the lesser- but conclude that he is any shape, criminal facilitation in address offense. Luttrell v. Common- included form, or fashion. The issue in Jackson was wealth, Ky., 554 possession whether of a controlled substance story to whose to believe The decision as trafficking is a lesser included in a jury course an issue for the to decide. is of opinion controlled substance. Id. at 62. The oppor- jury given should have been an analysis, inappli- no Farris contains cites tunity to consider this criminal facilitation authority, contrary existing cable and is an in- instruction. Refusal allow such 505.020(2) precedent interpreting It is struction, supported when the evidence hereby overruled. presented, error. constitutes reversible Appellant Since was not entitled to an Appellant asserts that the could have instruction on criminal facilitation as a lesser guilty him of criminal facilitation in- object included offense of the offenses of trafficking based on the evidence stead of trafficking in or of a controlled presented at trial because it have “con- could substance, there was no error in the trial guarding cluded that he was the cocaine for ruling. court’s he had others.” told reasons, foregoing judgments For the day before. The Com- sold his cocaine of conviction are affirmed. in- that “a facilitation monwealth counters struction was unwarranted because there COOPER, GRAVES, JOHNSTONE, absolutely at tri- no evidence introduced WINTERSHEIMER, JJ., LAMBERT and appellant provided al an- which showed concur. person opportunity’ other with the ‘means or to traffick controlled substances.” [sic] STUMBO, J., by separate opinion dissents appellant The Commonwealth asserts STEPHENS, C.J., joins. in which presented sup- at trial which would evidence STUMBO, Justice, dissenting. port only one of two outcomes—either cocaine, trafficking appellant guilty majority part I dissent from that of the trafficking in guilty or that he was not opinion appellant’s which concerns claim of cocaine. arising error which from the trial court’s jury failure to instruct on the lesser jury op- given The should have been included offense of criminal facilitation. portunity to consider a criminal facilitation facilitation is defined at KRS Webb, instruction for reasons as stated 506.080: supra. jury presented here was with (1)A regarding appellant’s con- person guilty is of criminal facili- alternate theories contraband, when, and it was entitled acting knowledge tation with nection person committing of those theories or select another or intends believe crime, portions The facts and reasonable engages he in conduct of either. commit ambiguous too to be so knowingly provides person such conclusions were In opportunity for the commission limited in outcome. Farris Common- means or wealth, Ky.App., 836 S.W.2d 451 appellant’s

ease wherein the conviction for

trafficking was reversed for the failure to instruction,

give a criminal facilitation we

stated: presents again

This case once the situa- objected

tion where the Commonwealth defendant, requested by

instructions favorably trial court

and the ruled to the compelled

Commonwealth. We feel

point many out that such as this reversals

case could be if the avoided Common-

wealth would be more reasonable its instructions,

position on the trial

courts would allow more latitude in the

giving requested by of instructions defen-

dants.

Id., at 454.

The failure of the court to instruct the

on the lesser included offense of criminal

facilitation error constitutes reversible judgment Fayette Circuit Court

should be reversed and this cause remanded

for retrial.

STEPHENS, C.J., joins.

Roy RICHARDSON, Appellant, Dale Kentucky,

COMMONWEALTH of

Appellee.

No. 95-CA-003050-MR. Appeals Kentucky.

Court

March 1998.

Discretionary 1998. Review Denied Oct.

Case Details

Case Name: Houston v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Sep 3, 1998

Citation: 975 S.W.2d 925

Docket Number: 96-SC-993-MR

Court Abbreviation: Ky.