Opinion of the Court by
Appellant, Richard Smith, appeals from a judgment of the Wayne Circuit Court convicting him of wanton murder, three counts of first-degree wanton endangerment, two counts of second-degree wanton endangerment, and sentencing him to a total of twenty years’ imprisonment.
As grounds for relief Appellant raises four issues: (1) the trial court erred by denying his pretrial motion to suppress the recorded interview he gave to the police shortly after his arrest; (2) he was entitled to a directed verdict on two of the counts of first-degree wanton endangerment; (3) palpable error occurred as a result of the trial court’s failure to define self-protection in connection with the self-defense instruction; and (4) he was entitled to an instruction defining reasonable doubt. Finding no reversible error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the light most favorable to the verdict the facts are as follows. On the evening of September 18, 2009, at around 11:00 p.m. Appellant rode his horse about two miles from his residence to the home of Jonathan and Samantha Rigney, and their two small children, Gabe and Jazzlyn. When Appellant arrived at the Rigney home, Samantha was seated on one side of the front porch, holding Jazzlyn. Jonathan, sitting beside Samantha, was holding Gabe. Samantha’s cousin, Stacie Conn, and Stacie’s
As Appellant approached the house, Samantha asked him why he was out so late. Appellant then drew a gun from his pants, and began shooting. As he did so, Samantha was heard to exclaim, “No, Richard, no....” At the first sound of gunfire, Appellant’s horse bucked but Appellant continued shooting. Jonathan immediately took Gabe into the house, and then returned to get Jazzlyn. In the meantime, Stacie and Austin successfully took cover inside the house. Altogether, Appellant fired four to six shots. When the shooting concluded, Appellant fled the scene. Samantha was mortally wounded by a gunshot in the forehead and she died at the hospital a short time later.
After Appellant was identified as the shooter, deputies from the Wayne County Sheriffs Office went to his residence. Appellant was not home, but his wife gave them permission to search the property for him. They located the horse, which appeared to have been recently ridden, and they discovered two beers in the saddlebag. After about two hours, the deputies abandoned the search for Appellant and asked his wife to have him call them when he returned.
Appellant called about an hour later and the deputies returned to his residence. When they arrived, Appellant came out of his house drinking a beer. When informed by the officers that they wanted to question him about a shooting, Appellant responded that if he had shot somebody he could not remember doing so. Appellant was subsequently taken to the sheriffs office where he was formally interviewed. It is not disputed that Appellant had been drinking alcoholic beverages and was intoxicated at the time of the interview.
After an appropriate rendition of his Miranda warnings, Appellant signed a written acknowledgment that he understood his rights. He then admitted that he was at the Rigney home that evening, and suggested that he had gone there to confront Jonathan because he believed that Jonathan had stolen property from his brother.
At first, Appellant told the officers that when he arrived at the Rigney home and saw a large gathering on the porch, he did nothing more than set off an M-80 firecracker. Later in the interview, however, when asked if anyone else had a gun, Appellant said that when he arrived, Jonathan went inside, got a rifle, and pointed it at him. In this alternate version of events, Appellant said he lit the firecracker in response to Jonathan’s threatening gesture with the rifle. However, some time later Appellant again explained that he had set off the firecracker, but he omitted the detail that he did so while Jonathan was pointing a rifle at him. Throughout the interview, Appellant steadfastly maintained that he did not shoot anyone.
Following a jury trial, which based upon the police interview included an instruction on self-defense, Appellant was convicted of murder, three counts of first-degree wanton endangerment, and two counts of second-degree wanton endangerment. As a result of these convictions, Appellant was sentenced to a total of twenty years’ imprisonment. This appeal followed.
II. ADMISSIBILITY OF THE POLICE INTERVIEW
Appellant first contends that the trial court erred by denying his pretrial motion to suppress the statements he made to the police in the interview shortly after the shooting. Appellant maintains that the interview should have been sup
Following a hearing, the trial court determined that Appellant was not so intoxicated as to render involuntary, or otherwise invalidate, the written waiver of his right to remain silent. On appellate review of a trial court’s denial of a motion to suppress, we apply the two-step process adopted in Adcock v. Commonwealth,
Generally speaking, no constitutional provision protects a drunken defendant from confessing to his crimes. “The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference.” Peters v. Commonwealth,
However, there are two circumstances in which a defendant’s level of intoxication might play a role in the suppression decision. First, intoxication may become relevant because a “lesser quantum” of police coercion is needed to overcome the will of an intoxicated defendant. Hill v. Anderson,
Second, a confession may be suppressed when the defendant was “intoxicated to the degree of mania” or was hallucinating, functionally insane, or otherwise “unable to understand the meaning of his statements.” Halvorsen v. Commonwealth,
Neither of these exceptions is applicable here. First, there was no evidence of coercive influence by the police. All of the evidence tended to show that Appellant freely and knowingly accompanied the police to the headquarters for the express purpose of submitting to questioning about his alleged participation in the shooting. In addition, the record discloses that Appellant was read his Miranda rights at the beginning of the station interview, and that he signed a waiver form reflecting that he understood these rights and was voluntarily waiving them for the express purpose of the interview. Therefore, the first exception does not apply. It is well-established that no constitutional violation may occur in the absence of state-sponsored coercion. Colorado v. Connelly,
Further, a review of the interrogation discloses that Appellant was not so intoxicated to the degree of mania, hallucinations, or functional insanity. There is no basis to conclude that the interview should have been suppressed on the basis that Appellant was so intoxicated that his statement was inherently unreliable.
The trial court’s findings of fact following a suppression hearing are conclusive if supported by substantial evidence. RCr. 9.78; Springer v. Commonwealth,
III. SUFFICIENCY OF EVIDENCE ON FIRST-DEGREE WANTON ENDANGERMENT CHARGES
Appellant next contends that he was entitled to a directed verdict on the two first-degree wanton endangerment charges involving Jonathan and Gabe, who were seated next to Samantha at the time of the shooting. He argues that none of the bullets endangered Jonathan or Gabe as evidenced by the fact that no bullet holes were found in the exterior walls of the Rigney home. More concisely, he contends that except for the bullet that went into the center of Samantha’s forehead, none of the shots came close to hitting anyone, thereby negating the essential element of first-degree wanton endangerment: conduct that creates a substantial danger of death or serious physical injury to another person.
When considering a motion for a directed verdict, the trial court is required to “draw all fair and reasonable inferences from the evidence in favor of
The evidence in this case easily satisfies the elements of first-degree wanton endangerment. As described in the trial testimony, after becoming voluntarily intoxicated, Appellant sat astride a horse just twenty-four feet from a small porch occupied by three adults and three children. He then deliberately fired a shot to the side of the porch where Jonathan and Gabe were seated. Even though his horse began to buck when the first shot was fired, Appellant continued firing his pistol from atop an uncontrolled horse. Indeed, it was under the circumstances just described that Samantha, seated only a few feet from Jonathan and Gabe, was shot. It is therefore easily seen that if the horse had bucked in a slightly different way as Appellant continued to fire his gun, any of the shots could have hit Jonathan or Gabe as surely as the one that hit Samantha.
Appellant’s conduct, as indicated by the Commonwealth’s evidence, exhibited an extreme indifference to the value of human life and created a substantial danger of death or serious physical injury to Jonathan and Gabe. Appellant was not entitled to a directed verdict on these two charges. See Port v. Commonwealth,
IY. INSTRUCTIONAL ERROR-FAILURE TO DEFINE “SELF-PROTECTION”
Appellant next contends that the trial court’s instruction on self-protection erroneously failed to provide the jury with the definition of the term “self-protection.” Appellant asserts that his general request for an instruction on his self-defense theory of the case, with which the trial court agreed, adequately preserved his complaint regarding the erroneous omission of the definition of “self-protection.” He further argues that, in the event we conclude the issue was not preserved, we should accord him palpable error review under RCr 10.26.
First, we cannot agree with Appellant’s contention that the issue was
In a case also rendered today by this Court, Martin v. Commonwealth,
Here, the trial court did not entirely fail to give a self-protection instruction and, therefore, RCr 9.54(2) does not operate as a bar to appellate review.
The definition of self-protection is an essential component of a proper instruction on the defense of self-protection. A proper self-protection instruction must include the corresponding definition of self-protection set forth in KRS 503.050, such as the example provided in 1 William S. Cooper 85 Donald P. Cetrulo, Kentucky Instructions to Juries (Criminal) § 11.07 (5th ed.2012).
Several factors compel this conclusion. First, while resolving issues of credibility is the function of the jury, we find it extremely unlikely that the missing instruction would have influenced the jury in favor of Appellant’s theory that he did not fire his gun until after Jonathan aimed a rifle at him. Jonathan had no apparent motive to do that, and twice during his police interview Appellant described the incident without ever mentioning such a critical detail. Stated otherwise, Appellant gave inconsistent versions of what occurred, first claiming that he did nothing but set off a firecracker, apparently to account for the blast. Only when prompted by a question regarding whether anyone else had a gun did Appellant mention that Jonathan pointed a gun at him. Appellant’s apparent theory that he responded to the alleged threat of Jonathan’s rifle by standing his ground and lighting a firecracker strains credulity. The evidence further indicated that police found no rifle at the scene of the shooting to support Appellant’s theory, and Jonathan was a convicted felon who was ineligible to possess a rifle. Appellant’s flight from the scene after the shooting, a well-recognized indication of guilt, further weakened his claim, and lessens the likelihood that the missing instruction caused a miscarriage of justice.
And finally, a self-defense instruction was given, so Appellant was free to argue his defense to the jury and take it upon himself, through counsel, to explain the meaning of self-protection. Generally, a palpable error affects the substantial rights of the party “only if it is more likely than ordinary error to have affected the judgment.” Ernst v. Commonwealth,
V. REASONABLE DOUBT INSTRUCTION
Finally, Appellant contends that the trial court erred by denying his request for an instruction defining reasonable doubt. His proposed instruction was based upon the formulation approved by the Second Circuit Court of Appeals in United States v. Shamsideen,
In light of our well-established authorities disallowing any party from defining reasonable doubt at any stage of the trial, the trial court did not err by denying Appellant’s request to do just that. Nevertheless, we appreciate defense counsel’s effort to resurrect the issue because it offers this Court the opportunity to reexamine settled precedent and policy. However, upon reflection and reconsideration of the issue, we remain convinced that the better course is the policy embodied in the current version of RCr 9.56. Ironically, the opening passage of Appellant’s proposed definition sets out the strongest argument for its rejection: “The words [reasonable doubt] almost define themselves.” The words are not confusing or complex and the many efforts we have seen to elaborate upon them are not enlightening. The proposed embellishments raise as many questions as they answer; they tend only to obscure the simple concept by concealing it in a garland of verbiage. Accordingly, we decline this invitation to gild the lily; some things are best left as they are, simple and unadorned. So it is with the term “reasonable doubt.”
VI. CONCLUSION
For the foregoing reasons, the judgment of the Wayne Circuit Court is affirmed.
Notes
. KRS 508.060 provides that "[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.”
. We note that the Commonwealth does not assert RCr 9.54(2) as a bar to appellate review.
. Paragraph 4 of Cooper and Cetrulo’s Instruction at § 11.05, restated to conform to the evidence in this case, would provide:
SELF PROTECTION
[A.] If at the time an individual, including the Defendant, uses physical force upon another person he believes that person was then and there about to use physical force upon him, he is privileged to use such physical force against that person as he believes to be necessary in order to protect himself against it, including the right to use deadly physical force but only if he believed deadly physical force to be necessary to protect himself from death or serious physical injury;
[B.] A person who is not engaged in an unlawful activity and who is attacked in place where he has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
. Appellant proposed the following instruction defining "reasonable doubt”:
REASONABLE DOUBT
I have said that the Commonwealth must prove Mr. Smith guilty beyond a reasonable doubt. The question naturally is, "What is a reasonable doubt?” The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must, therefore, be proof of such convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion. It is not an excuse to avoid the performance of an unpleasant duty. And, it is not sympathy.
In a criminal case, the burden is at all times upon the Commonwealth to prove guilt beyond a reasonable doubt. The law does not require that the Commonwealth prove guilt beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden never shifts to the accused, which means that it is always the Commonwealth’s burden to prove each of the elements of the crime charged beyond a reasonable doubt.
If, after fair and impartial consideration of all the evidence, you have a reasonable doubt, it is your duty to acquit Mr. Smith. On the other hand, if after fair and impartial consideration of all the evidence you are satisfied of Mr. Smith’s guilt beyond a reasonable doubt, you should vote to convict.