Smith v. CommonwealthSmith v. Commonwealth
Appellant, Travis Smith, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Hickman Circuit Court convicting him of first-degree burglary by complicity, first-degree robbery by complicity, and second-degree assault by complicity, and sentencing him to a total of twenty-two years’ imprisonment.
For the reasons stated below, we conclude that Appellant’s claims of instruсtional error are not properly preserved. Nevertheless, upon palpable error review, we conclude that the jury was adequately instructed upon the necessary elements of accomplice culpability, and therefore do not amount to palpable error. We also conclude that the trial court erred by imposing court costs against Appellant under
I. FACTUAL AND PROCEDURAL BACKGROUND
Evidence presented by the Cоmmonwealth at trial demonstrated that Appellant was eighteen years old at the time of the crimes, and was a member of a gang called the “Gangster Disciples.” He lived near the victim, 74 year-old Thomas Dublin. He had worked for the victim over a long period of time and had been to the victim’s residence on many occasions over the course of several years. As such, Dublin was well acquainted with Appellant.
On the day of the crimes, Dublin went, as he frequently did, to the nearby Jewell Mart to eat lunch and socialize with others that congregated there. As he counted out his money to pay for his lunch, a $100-bill was briefly visible to by-standers whiсh included Terrell Thomas. At home that evening, Dublin heard a knock on his door that he assumed was his son. When he opened the door, however, a man with a cloth over his face entered the residence. Dublin was not fooled by the ineffective disguise. He immediately recognized Appellant and asked him what he was doing there. Appellant looked around the residence and then promptly left without saying anything.
When Dublin tried to close the door behind Appellant, another man (apparently accomplice Billy Joe Crumble) used his foot to prevent the door from closing. The man then shoved the door back open, causing Dublin to lose his balance and fall over a table. As Dublin fell, his leg hit a chair
Another intruder, apparently Thomas, pointed a gun at Dublin’s head and demanded to know where Dublin kept his money. Dublin surrendered his money to the intruders, who also took a few items of Dublin’s personal property. It appears that after his initial confrontation with Dublin, Appellant remained outside while the events described above were occurring. Based upon Dublin’s recognition, police began investigating Appellant’s involvement in the crimes. Eventually, Appellant confessed to his involvement and he identified his accomplices.
Appellant was indicted and charged as an accomplice (
The jury found Appellant guilty and recommended a sentence of imprisonment for ten years on the first-degree burglary conviction, for twelve years on the first-degree robbery conviction, and for five years on the second-degree assault conviction, with all sentences to be served concurrently for a total of twelve years. The trial court, citing Appellant’s long association with the victim and his exploitation of this knowledge to facilitate the crimes, elected to run the twelve-year sentence and the ten-year sentence consecutively, but ordered both to run concurrently with the five-year sentence, for a total sentence of twenty-two years. The trial court also imposed court costs of $155.00 and restitution of $781.20.
II. JURY INSTRUCTIONS
The Commonwealth’s case against Appellant was based entirely upon theories of accomplice liability. In his first assignment of error, Appellant argues that the instructions did not properly apprise the jury of the specific intent or knowledge required for culpability as an accomplice to each of the charged offenses and, therefore, the instructions permitted the jury to convict Appellant without the requisite finding of the appropriate mens rea. At the outset, the Commonwealth contends that Appellant did not adequately preserve his claim of instructional error for appellate review. Therefore, we begin our analysis by examining whether the issues raised by Appellant were properly preserved.
1. Preservation of Instructional Error
The Commonwealth challenges the preservation of Appellant’s claim because Appellant never objected to the trial
Appellant’s tendered instructions also included instructions for the lesser-included offenses of second-degree burglary by complicity, second-degree robbery by complicity, as well as other instructions favorable to the defense. On the point of error he now raises, the difference between his tendered instructions and those given by the trial court amounts to a relatively subtle distinction buried within the thirty-five pages he tendered to the trial court on the day of trial. During the instruction conference, as the jury instructions were being finalized, Appellant’s counsel never directed the trial judge’s attention to the variance between his tendered instructions and the instructions being prepared by the trial court.
RCr 9.54(2) provides that “[n]o party may assign as error the giving or the failure to give an instruction unless the party’s pоsition has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.” (emphasis added). Appellant could have easily avoided the error he now claims by giving fair and adequate notice of his concern to the trial court, if indeed trial counsel then shared the concerns now raised by appellate counsel. Silence as the trial court proceeded down what Appellant now claims to be an erroneous pаth would have been reasonably perceived as agreement with the trial court’s instructions, and falls far short of the fair and adequate notice required by RCr 9.54. While a party generally may preserve instructional error by tendering to the trial court a correct formulation of the jury instruction, he may not at the same time sit idly by during the jury instruction conference and create the appearance of acquiescence to erroneous instructions. Moreover, we are reluctant to fault the trial court for failing to follow Appellant’s tendered instructions when Appellant himself equivocated with the disclaimer reserving “the right to alter, amend or withdraw the proposed Instructions at any time prior to or during the trial of this matter.”
The provisions of the tendered instructions which, according to Appellant, correctly set forth the requisite mens rea for accomplice culpability amounts to a relatively subtle distinction hidden within thirty-five pages of instructions, tendered the day of trial, and not mentioned to the trial court during the instruction conference. We are satisfied that under these circumstances Appellant did not fairly and adequately raise his objection to the instructions to the trial court. As such, we agree with the Commonwealth that this error is not properly preserved. Chumbler v. Commonwealth,
We therefore agree with the Commonwealth that this allegation of error is not properly preserved. Thus, our review will proceed under the manifest injustice standard contained in RCr 10.26.
2. Analysis
(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c)Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commissiоn of the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the result, fails • to make a proper effort to do so.
The primary distinction between these two statutory theories of accomplice liability is that, under
Under the circumstances of this case, the complicity instructions for burglary and robbery clearly fall under
a. Instructions for Accomplice Liability for Robbery and Burglary
Appellant argues that the robbery
In Skinner v. Commonwealth, 864 5.W.2d 290 (Ky.1993), the defendant made substantially the same argument in a first-degree burglary by complicity case. There, the defendant argued that the trial court erred in instructing on first-degree burglary by complicity because there was no evidence that he knew that any participant in the crime was armed with a deadly weapon so as to elevate the felony classification of the crime. In rejecting this argument we held that “an accomplice may be held liable for a confederate’s aggravated offense, although having no knowledge of the aggravating circumstance.” Id. at 299. See also Commonwealth v. Yeager,
As later noted in Young v. Commonwealth,
Clearly, the same rule applies in the situation we address. As such, the premise of Smith’s central argument with respect to the robbery and burglary complicity instructions is simply incorrect. In summary, the instructions did not need to reflect that Appellant had the specific intent, or knowledge, that any of his accomplices would be armed with a deadly weapon during the commission of the robbery, or would be armed with a deadly weapon in the commission of the burglary.
b. Instructions for Accomplice Liability for Second-degree Assault Instruction
Turning now to the second-degree assault instruction, Appellant contends that the instruction was erroneous because it did not require a finding that he intended for Duncan to be assaulted, or knew that his accomplices would do so while armed with a deadly weapon or dangerous instrument.
Complicity to assault (of any degree) is a “complicit in the result” crime because causing a particular result is an element of the offense. See, e.g.,
Upon review, we disagree with Appellant that the instructions were deficient in setting forth these elements. More specifically, the second-degree assault instruction, in combination -with the instruction defining complicity, did in fact require that Appellant have aided in the conduct which resulted in the injuries incurred by Duncan.
The complicity to second-degree аssault instruction stated as follows:
You will find the Defendant, Travis Smith, guilty of Complicity to Assault in the Second Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about the 10th day of March, 2010 and before the finding of the Indictment herein, the Defendant, Travis Smith, aided, counseled or attempted to aide (sic) others to cause physical injury to Thomas Dublin by means of a deadly weapon or dangerous instrument;
B. The knife was a dangerous instrument as defined under Instruction No. 4A;
AND
C.That in so doing:
(a) The Defendant, Travis Smith, or others intentionally caused physical injury to Thomas Dublin.
OR
(b) The Defendant, Travis Smith, or othеrs wantonly caused serious physical injury to Thomas Dublin.
In addition, the trial court informed the jury of the definition of complicity consistent with
Complicity means that a person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits, commands, or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such person in planning or committing the offense, (emphasis added).
Clearly the better phrasing rather than “Travis Smith, or others used ...” would have been “Travis Smith, alone or in complicity with others used ...” See Crawley v. Commonwealth,
In viewing the second-degree assault instruction in its totality, when read in combination with the complicity definitional instruction, we believe the charge properly informed the jury of the elements necessary to convict Appellant of second-degree assault, including the relevant intent requiremеnts. The instructions provided that Appellant could be convicted of the crime only if he either intended from the outset that there be an attack by one of his accomplices against Duncan with a knife which would cause physical injury, see
The Commonwealth’s theory was that Appellant’s initial entry into Duncan’s residence was to reconnoiter the scene, and so aided his accomplices in engaging in the conduct which caused the result, i.e., the injuries to the victim. The instructions reflect this, and further inquire сoncerning whether Appellant’s criminal intent was intentional or wanton, and the degree of the injury. Insofar as the dangerous instrument requirement is concerned (the knife), and its use to aggravate the crime, as previously explained, “[U]se of a dangerous, instrument, and injury inflicted upon the victim are viewed as ‘aggrava-tors,’ in which the complicitor need have no involvement at all.” 1 Cooper, Kentucky Instructions to Juries § 10.09 Comment. As such, no palpable error occurred.
3. Conclusion
For the reasons discussed above, each of the complicity instructions captured the necessary elements to properly instruct the jury. And while there may have been minor discrepancies in the instructions, these deviations are not cited by Appellant as error. As such, no palpable error occurred as a result of the instructions. See RCr 10.26.
III. ASSESSMENT OF COURT COSTS
Appellant also contends that the trial court erred by assessing $155.00 in court costs against him even though the trial court declared him to be indigent at the outset of the case by appointing counsel to represent him and did so again at the end of the case by granting his motion to appeal as a pauper. During the sentencing hearing the trial court asked Appellant if he had any money in his jail account and Smith responded “I think it’s
Alright, there’s been a recent Supreme Court ruling that says the court should not require indigеnt persons to pay their court costs. I understand the English of that ruling but this court, while we’ve got a system that is running out of money, feels like a person should pay his way if he has any ability to pay it. Based on testimony, you all are free to ask him any other questions that you want to. I understand it’s a very small amount that he’s got on his commissary account but if an individual’s got some money on a commissary account or had money on a commissary account immediately prior to his sentencing, this court is going to find that he’s no longer indigent in regard to his ability to pay his court costs and therefore he should pay his court costs. I’ll put that right on the record and I’ll sign this written Order if yоu want to appeal it and the Court of Appeals or Supreme Court can tell me that I’m wrong and I’ll ... readdress it.
Appellant concedes that this issue is not preserved, but requests palpable error review pursuant to RCr 10.26.
Appellant cites to Ladriere v. Commonwealth,
For years this Court had taken the position that the language in
The proper inquiry for assessing court costs is not whether a defendant is “indigent” as defined in
The trial court assessed court costs upon his sua sponte determination that Appellant’s jail account of $1.00 meant that he was “no longer an indigent person.” While that ruling was obviously inconsistent with the contemporaneous finding that Appellant’s “indigent” status entitled him to an appeal at state expense, it was also not equivalent to a determination of whether Appellant was “a poor person.” Accordingly, we reverse the assessment of court costs and remand that matter to the trial court for further proceedings consistent with Maynes, to determine, not whether a defendant is indigent as defined in
IV. CONCLUSION
For the foregoing reasons, the judgment of the Hickman Circuit Court is affirmed convicting Appellant for the crimes of first-degree burglary by complicity, first-degree robbery by complicity, and second-degree assault by complicity, are hereby affirmed. The portion of the judgment ordering Appellant to pay court cоsts is reversed and remanded to the trial court for further proceedings consistent with this opinion.
Notes
. The judgment entered herein (as well as the jury instructions at issue) refer to Appellant’s crimes as “Complicity to Burglary 1st”, “Complicity to Robbery 1st”, and “Complicity to Assault 2nd.” For clarity, we note that under our penal code "complicity” is not a separate crime; rather, it is a means by which a crime may be committed. Therefore, a more accurate name for the crime of an accomplice may be "First-degree Robbery by Complicity”, etc.
. He was also charged with one count of criminal syndicate (
. Appellant does not challenge the judgment specifically with respect to restitution.
. In deciding whether to exercise our discretion to grant palpable error review, we have noted the distinction made by the United States Supreme Court between a forfeited error, on the one hand, i.e., an error to which a party failed to make a timely objection, and, on the other hand, a waived error, i.e., an error of which the party was aware but to which he has knowingly decided not to object. United States v. Olano,
.
.
. Cooper succinctly states the rule in Kentucky as follows: "[Ray and Yeager are] important because thеy established the still unbroken precedent that complicity to first degree robbery requires only that the com-plicitor's culpability relate to the basic elements of robbery. He need not be complied or even cognizant of, for example, the possession of a handgun by another actor. Possession of a deadly weapon, use of a dangerous instrument, and injury inflicted upon the victim are viewed as 'aggravators,' in which the complicitor need have no involvement at all." 1 Cooper, Kentucky Instructions to Juries § 10.09 Comment. The same rule would, of course, apply in other complicity to the act crimes, including burglary.
.
. The conduct underlying the assault charge was Hunt’s brandishing of the knife against Duncan, during which Duncan grabbed at the knife and cut his finger.
. We note that the same deficiency occurred in both the burglary and robbery instructions.
. In this vein, it also would have been better to usе the names of the accomplices rather than "or others.” It is also worth noting that since there was no evidence presented that Appellant himself either used or threatened force, or was armed with a deadly weapon, the better instruction would also have omitted any reference to Appellant himself as having engaged in this conduct, and have been phrased in terms of one or more of his accomplices as having engaged in the conduct.
. Under the palpable error standard, an un-рreserved error may be noticed on appeal only if the error is "palpable” and "affects the substantial rights of a party,” and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error.” RCr 10.26. In general, a palpable error “affects the substantial rights of a party” only if "it is more likely than ordinary error to have affected the judgment.” Ernst v. Commonwealth,
. The trial judge implies that he imposed court costs upon Appellant out of concern for the dire fiscal affairs of the state. It is hard to find any economic advantage in the judge’s decision to assess court costs against a defendant who had only $1.00 to his name and would likely spend a substantial part of the next 22 years in prison, especially when the judge then invited Appellant to appeal the ruling and declared him to be indigent so that he could do so at taxpayer expense that will far exceed the court cost the judge sought to collect.
. Abrogated by statute as explained in Maynes v. Commonwealth,