*1 such, v. Beerbower. As his statement is Yates’s statement not protected protected 26.02(3)(a). confidential and is not by the discovery by CR attorney-client privilege. Accordingly, the decision of the Court of Appeals is reversed and the writ of prohi- II. WORK PRODUCT. bition is vacated.
Yates alternatively asserts his statement protected by the work All concur. 26.02(3)(a). product exception to CR 26.02(3)(a) Again, disagree. we CR per discovery
mits of documents and tangibles
“prepared in anticipation litigation
for trial” or for a party and his or her
representatives only upon “a showing” of
“substantial need” and “undue hardship” by the party seeking discovery; provided, Myrna THARP, L. Appellant, however, impressions, “the mental v. conclusions, opinions, or legal theories of an attorney” may not be discovered even Kentucky, COMMONWEALTH of though “substantial need” and “undue Appellee. Thus,
hardship” exist. pre documents No. 1997-SC-1063-MR. pared in anticipation of litigation are sub ject i.e., qualified to a privilege, Supreme discover Kentucky. Court of only upon able showing of substantial Dec. 2000. need and hardship; undue but documents Rehearing April Denied containing the mental impressions or legal attorney conclusions of an absolutely are
privileged. Transit Auth. City River Vinson, Ky.App., 703 S.W.2d
The statement at issue was made an attorney, but Appellee Yates.
Thus, it is not an absolutely protected
legal impression or opinion attorney, of an
but a factual only statement entitled 26.02(3)(a).
qualified protection of CR
Though Haney posits that the statement
was not “in anticipation made litigation,”
we need not reach Haney that issue since
has shown both substantial need and un hardship. Haney
due has a substantial
need for the statement as the other
witness, Emmons, Similarly, is deceased. preclude discovery of the statement
would work an hardship, undue because
Haney has no other recourse to obtain the
same information. We conclude that *3 estimated to be seven
of the bruises were also frac- days There were old or older. ulnar another bone tures the left and of joint, ankle the latter esti- just above the days old eight mated to be seven old. be a month the former estimated fractures radiologist opined A acts were caused two of deliberate occasions. occurring separate abuse on two wife, Appellant Tharp Kenneth mother, were Myrna the child’s Tharp, *4 County Grand indicted a McCracken murder and Jury charges on wanton degree. in the Ken- criminal abuse first felo- persistent neth indicted was also A motion ny degree. in the first offender 9.16, separate granted, was RCr for trials Ap- and case tried first. Appellant’s had never wit- pellant testified she Elaina and abusing nessed her husband seriously anything had never observed shortly wrong the child until before with However, previously her she had death. she given police in which statements (1) her that she had admitted observed child his fists on husband beat with (2) 11, 1997; prior January occasions Elaina that she saw her husband strike II, Joseph Aprile, Vincent Assistant January on knock- with his fists Advocate, Frankfort, Public Counsel side-to-side, from and that ing Appellant. child, stop hitting she told but him the door then left the room closed Chandler, III, General, Attorney A.B. her, leaving the child alone with behind Harned, Sonego, Ian G. Michael Assistant (3) husband; her that later same General, Attorneys Attorney Office Gen- day, Elaina to she saw her husband throw Division, eral, Appellate Criminal Frank- floor, thought just “play- but he was fort, Counsel Appellee. thereafter, Shortly child. ing” with the COOPER, dia- Appellant in Elaina’s Justice. observed blood difficulty having she was per and that 11, 1997, Curtis, January age Elaina On called, but breathing. An ambulance was months, ruptured spleen died from a ten life were unsuc- efforts to save the child’s allegedly physical resulted cessful. stepfather, inflicted Kenneth abuse mur- wanton Appellant Medical was convicted of Tharp. examinations abuse in and of criminal body also severe bruises of der child’s revealed chest, to a abdomen, forehead, degree, was sentenced legs, left second years peniten- twenty-seven the head. total eye, scalp and back of Some tiary. appeals She to this Court as a (c)Having legal duty 110(2)(b), right, Ky. offense, matter of Const. commission of the fails to (1) alleging that her conviction of wanton make a effort to do so. by complicity murder fair violates the (2) causing particular When result is warning aspect Ex Post Facto claus- offense, person an element of an es of the Kentucky United States and con- who culpability acts with the kind of stitutions; that the was improper- respect with to the result ly instructed on the requirements of the commission sufficient for guilt by complicity; and various errors of that offense when to the admission or exclusion he: of evidence offered at trial. (a) engages or in a conspiracy Solicits person engage
with another I. EX result; POST FACTO. causing the conduct such There was no evidence that (b) Aids, counsels, attempts to aid aided,
killed Elaina Curtis or that she planning, or en- abetted, encouraged, or actively otherwise gaging the conduct participated in the conduct which resulted *5 result; such or in liability Elaina’s death. Her criminal predicated upon legal the violation of her (c) Having legal duty prevent a duty to make a proper protect effort to her result, conduct causing the fails to child from her husband’s assaults. KRS a proper make effort to do so. 502.020(2)(c). added.) (Emphasis The primary distinction between sepa
KRS 502.020 describes two statutory accomplice these two theories of rate and distinct theories under which a person guilty is that a can be person can guilty by complicity, be found “complicity to the act” under KRS i.e., “complicity to the act” under subsec 502.020(1) only possesses if the in statute, applies tion of the which when he/she principal tent that actor commit the principal conduct actor’s constitutes However, criminal can person act. a be offense, the criminal “complicity to the guilty “complicity to the result” under statute, result” under subsection of the 502.020(2) KRS without the intent that the applies princi which when the result of the result, principal’s act cause the criminal pal’s conduct constitutes the criminal of but with a state of mind equates fense, viz: culpability with “the kind of with (1) A person guilty an offense com- to the result that is sufficient for the com when, person mitted offense,” intent, mission of the whether promoting the intention or facili- recklessness, wantonness, aggravated or tating offense, the commission (1974 wantonness. KRS 502.020 Official he: Commentary); R. Lawson and W. For (a) commands, Solicits, in engages or tune, 3-3(b)(3), § Kentucky Criminal Law a conspiracy per- with such other 1998). (LEXIS 106, 3-3(c)(2), at at offense; son to commit the The most of offenses examples common (b) Aids, counsels, homicide, or attempts having prohibited to aid result are planning prohibited
such or com- with the death of another as the offense; result, assault, injury mitting bodily with the Commonwealth, Ky., 735 prohibited KRS In Knox as the result. of another (1987), convict (1974 the mother was Commentary). Official 502.020 rape first-degree by complicity ed of homi In the of criminal context prevent make a effort failing to cide, guilty can found defendant ie., child, raping her husband (in of an homicide complicity intentional KRS prohibited to a act. in the manslaughter murder or tentional 502.020(1)(c). In mother’s reversing the if under degree) first conviction, no stat we held that there was ac there is evidence that either he/she Kentucky law utory duty or common in the actions of tively participated1 com mother prevent “to requiring legal duty pre or failed in principal, 711; Knox, rape,” supra, mission actions, intent vent those with the thus, no application there was basis for (or in physical victim’s death serious theory “legal duty” enunciated 507.030(l)(a)) would result. jury per KRS 502.020(1)(c). rejected an specifically We However, a defendant can be found 199.335, the then-ex that KRS argument homicide unintentional reporting of isting requiring statute is evidence under KRS if there abuse, legal duty prevent child created actively either participated that he/she abuse; any and further held in a the actions of the or failed principal, newly- in the intent embodied legislative actions, those mth- statutes, KRS enacted criminal abuse intent actions would out the those 508.100, could considered seq., et not be death, but with result victim’s prior occurred the offense Knox because ie., recklessness, perceive failure to enactment of statutes. those risk that unjustifiable substantial Commonwealth, result, 501.020(4), Ky., 956 sup In Lane v. death would *6 (1997), denied, 522 U.S. porting a conviction of reckless homicide 874 cert. S.W.2d wantonness, 1123, 1067, 127 507.050; 140 L.Ed.2d by complicity, KRS 118 S.Ct. (1998), ie., of first- awareness of conscious disre the mother was convicted an and failing to gard unjustifiable degree of a substantial and assault result, 501.020(3), effort her do sup proper risk of that a KRS make inflicting serious manslaughter companion a conviction mestic from porting of ie., child, upon com degree injuries KRS her by complicity, physical the second ie., 507.040;2 wantonness, KRS aggravated prohibited to a result. plicity 502.020(2)(c). In mother’s creating affirming of death grave wantonness a risk conviction, Kentucky law im manifesting an ex we held that under circumstances life, to make a duty upon parent a support poses treme indifference to human protect effort to a conviction of murder ing wanton his/her another, 507.020(l)(b). trig- hands of thus harm at the complicity, KRS wantonly and Supreme re 2. Pursuant to definitions of 1. "The Court has described the (4), recklessly, man- participation’ KRS and quirement [cit as one of 'active Commonwealth, Ky., degree or reckless ing slaughter 864 in the second Skinner v. 290, failure to if the and v. Com homicide is committed S.W.2d 300 Gilbert monwealth, 376, (1991)] disregard the risk perceive the conscious Ky., 838 380 offense, gross description death to the victim constitutes commission care that jurisdic from the standard of widely embraced in other deviation courts Fortune, the situa- supra, person § would observe in 3- reasonable tions.” Lawson and (footnote omitted). 3(b)(4), tion. at 110 362 duty”
gering
“legal
aspects
defendant’s conduct was criminal.” Id.
502.020(1)(c)
(2)(c).
267,
However,
Lane
expressly
117
at 1225.
no
S.Ct.
Lane,
overruled
in that respect.
Knox
more
“that
required
give
than
the law
(con
supra,
opinion),
at 876 (plurality
881
may
sufficient
that men
warning
conduct
curring opinion). Appellant’s indictment
themselves so as to avoid that which is
Locke,
conviction of wanton murder
com
48,
forbidden.” Rose v.
423 U.S.
plicity
predicated upon
holding
244,
46
S.Ct.
L.Ed.2d 185
Lane.
January
(1975).
Elaina Curtis was killed on
Applying
principles
these
11, 1997.
Lane was
rendered until
judice,
case sub
we conclude that at the
Thus,
June
asserts
time Appellant committed the offense of
that her conviction violates the “fair warn
by complicity,
wanton murder
she had
ing” aspect
Ex
of the
Post Facto Clause.
“fair warning” that her failure to make a
I,
10;
§
U.S.
Ky.
Const. art.
Const.
proper effort
her
protect
child from her
19(1).
husband’s
violated
“legal
assaults
her
so,
duty”
required by
to do
post
An ex
facto violation occurs
502.020(2)(c).
judicial
the context of a
decision “[w]hen
Commonwealth,
...
Knox v.
supra,
state
involved
a[n]
unforeseeable
court con
a conviction of
to the act” of
“complicity
struction of a criminal statute is applied
502.020(l)(c),
subject
rape,
retroactively
crimi
there was
conduct,
nal liability
past
required
some evidence
element of
effect
intent, i.e.,
him
[being]
deprive
process
pleaded
of due
that the child
her
law the
fair warning
protect
sense of
that his mother to
her from the stepfa
assaults,
contemplated conduct constitutes a crime.”
ther’s sexual
but the mother re
Columbia,
Commonwealth,
City
Bouie v.
fused.
Ky.,
U.S.
Gilbert v.
354-55,
1697, 1703, 12
84 S.Ct.
L.Ed.2d
S.W.2d 376
Lane v.
In
Common
(1964).3
wealth,
process
supra,
bars courts from
was no
“[D]ue
there
evidence that
applying a
novel construction of a criminal
mother intended for either the assault
Thus,
injuries
statute to conduct that neither the
or the
to occur.
resulting
statute
any prior judicial
nor
decision
fairly
predicated
has
could have been
scope.”
only upon
“complicity
disclosed to be within its
theory
United
502.020(2)(c)
Lanier,
259, 266,
States v.
520 U.S.
117 result” embodied in KRS
*7
(1997).4
1219, 1225,
legal duty to
failing
perform
S.Ct.
therefore, Appellant jury the homicidal act is of wanton was attributed to participants, liability both with the of only required beyond to believe a reason- degree (1) each of measured his own Tharp’s able doubt that Kenneth con- (2) toward culpability death; the result. duct in resulted Elaina Curtis’s Appellant to a to failed make effort Comment, § Model Pt. I 2.06 Penal Code conduct; prevent doing, in so (1985) (footnote omitted). at 321 It has Appellant, amounting under circumstances purpose been asserted that the of Section wantonness, aggravated disregarded to a 2.06(4) is to ameliorate harshest as- unjustifiable substantial and risk that such of pects proba- the so-called “natural and conduct would in result Elaina Curtis’s doctrine, consequence” ble under which an accurately The instructions de- death. accomplice criminally is held liable a for scribed the elements of did crime which not intend aid or he/she which Appellant was convicted. long assist so as the resultant crime was a probable consequence natural and of the Finally, complains that Appellant crime aid or did intend to assist.10 he/she failing in the instructions were deficient Rogers, Accomplice Liability
A. Unin- require finding was Crimes; Remaining tentional within her “physically capable performing” Intent, L.A. Loy. Constraints 31 L.Rev. prevent the conduct (1998). 1351, 1360, 1362 This view of the 501.030(1) provides: child’s death. KRS purpose supported by of Section is following statement in Official A person is not of a criminal Comment to Section 2.06: offense unless: end, solicits an or or One who aids engaged He has conduct which achievement, agrees to aid its is an voluntary includes a act the omis- means accomplice may whatever perform duty which the law sion to employed, they insofar constitute or upon him and which he is imposes fairly envisaged commit an offense physically capable performing.... purposes of the association. But wholly when crime different has been Appellant’s It is unclear whether committed, thus involving conduct argument in this is a claim that she regard objectives within the conscious Kenneth physically unable it he is not unless accomplice, liable (a killing propo Tharp Elaina Curtis specific case falls within the terms trial). If sition she not assert at which did (4). Subsection so, concurring Lane v. Com opinion Comment, § Pt. Model Code I 2.06 Penal monwealth, out supra, points at 311 502.020(2)(c) anticipate courage does not (read Thus, heroism, Appellant’s requires only proper but it immaterial “reasonable”) protect effort to degree criminal or the thereof Lane, (Cooper, supra, from harm. 881 Tharp is ever convicted whether Kenneth J., concurring). requirement This causing the of criminal homicide for death Curtis, or, so, gives leeway if degree “proper” Elaina of which effort any physical To consider infirmities of homicide he convicted. convict State, 21-3205(2); (1996); 351 E.g., § v. 685 A.2d Kan. Stat. Ann. Me. Chance 17-A, 57(3)A; Bowman, (Del.1996); § Rev.Stat. Ann. tit. Minn.Stat. State 588 A.2d v. 609.05(2); Prettyman, Ann. People (Me.1991). Cal.Rptr.2d Cal.4th 926 P.2d
367 might mitigate complains A. that parent’s protect Appellant failure University emergency child from harm. room records his/her Kentucky Medical and Western Center Regardless, 1974 Official Commen- Baptist Hospital pertaining prior treat tary to explains that the ment of Elaina introduced into Curtis were purpose of that statute is “to remove from being evidence without furnished to her the field of criminal all social before If an trial. this is assertion of resulting harms involuntary from acts as violation,” “discovery simple answer well resulting those failures to attorney that filed Commonwealth’s moral, perform non-legal, yet duties.” notice in the record of his intent to intro Professors Lawson Fortune tell us duce that they these records and were that “[t]he essence of subsection is that copying. Appel available for review and act, can there be no crime without an lant then asserts that records do not it though is clear that failure to act under findings affirmatively reflect of the extent a legal duty requirement.” satisfies the of bruising and the fractures which were Fortune, 2—1(a), supra, § Lawson and at mortem, post they discovered thus belie predicate did not Ap- instructions attorney’s the Commonwealth’s statement pellant’s guilt upon case an this involun- during closing Appellant that argument tary act or upon perform the failure to “must If have noticed the bruises.” this is non-legal upon duty, but her failure to act closing argu assertion of “improper while under a legal to do so. KRS ment,” ample there was evidence from oth application has no to this case. argument. er support witnesses Regardless, nothing about this claim of note the trial instructions We error implicates Kentucky Rules of did not include as an element of the of Evidence. Defendant, fense Myrna Tharp, “[t]hat Appellant complains B. parent
was the
and custodian of Elaina
trial
sponte
court’s failure
conduct sua
Curtis,” an essential element
hearing,”
“Daubert
Daubert v. Merrell
502.020(2)(c).
liability under KRS
That
Inc.,
Pharmaceuticals,
579,
Dow
509 U.S.
issue was
raised neither
trial nor in the
2786,
(1993),
113 S.Ct.
In Interest
Carroll,
officer,
(1998);
investigating
Detective
269-70
State v.
S.E.2d
*12
(1)
Carr,
421,
that
“it was obvious to
that
608,
testified
us
Kan.
963 P.2d
426
265
homicide;” (2)
we
a
“I
Probst,
investigating
were
(1998);
79,
v.
83
State
623 So.2d
(3)
parents;”
it had
be one of
knew
to
the
(La.Ct.App.1993);
v. La
Commonwealth
[Appellant]
“it
that
was not
was obvious
zarovich,
147, 547 N.E.2d
Mass.App.Ct.
28
telling
gave
the truth
she
one of her
[when
940,
(1989);
Loss,
v.
295 Minn.
943
State
police];”
five
different statements to
271,
404,
(1973);
407
v.
204 N.W.2d
State
(4)
throwing
baby
“I
think
a
on
don’t
Candela,
852,
(Mo.Ct.App.
929
870
S.W.2d
is playing.” Appellant argues
floor
72,
1996);
v. Phillips,
State
74 Ohio St.3d
that
of these statements violates the
each
denied,
643,
(1995),
656 N.E.2d
654
cert.
it
so-called “ultimate issue rule.” Suffice
1213,
1835,
517
116
134 L.Ed.2d
U.S.
S.Ct.
that
that rule in
say
we abandoned
(1996);
938
492
Orelup,
State v.
N.W.2d
Commonwealth, Ky.,
v.
956
Stringer
State,
101,
(S.D.1992);
v.
681
103
O’Neill
883,
(1997),
denied,
cert.
523
S.W.2d
891
663,
(Tex.App.1984).
de
S.W.2d
669
We
1052,
118
tion that Tharp objection no made at trial caution the trial courts the Common- to the any form of of the trial court’s wealth of of abstractly defining the risks complicity to homicide aii instructions. In offense within separately jury the in- fact, only objection the by Tharp question, made in structions.2 trial Without courts the trial court to of the any jury may instruc- simplify by sepa- their instructions (such objection” tions was a “general rately defining the certain terms as the states) trial court should jury culpable not instruct the appear mental regarding any throughout offense because the evi- relating the instructions to the dence did justify not submission of this offenses Trial themselves.3 courts need 9.54(2): 1.See RCr ly adequately present position to the thereby preserve trial court and the issue for party assign may No giving as error the Id.). review." give or the failure to an instruction unless party’s position fairly the has been and ade- Fulkerson, Ky., 2. See Ford Motor Co. v. 812 quately presented judge by trial an 119, (1991) ("Unlike S.W.2d many 122 motion, offered instruction or or unless instructions, jurisdictions pattern that use party objection makes before the court explain otherwise law of the case to the jury, stating specifically instructs the jury, practice Kentucky abjures party objects matter to which the and the court, requires applying abstract and the trial ground grounds objection. (rather stating) underlying legal prin- than Commonwealth, Ky., Id. See also Davis v. 967 Id.); ciples, dispositive to frame the issue.” (1998) (“[I]mmediately S.W.2d 580-581 Commonwealth, Taylor Ky. 281 136 prior reading to the formal of the instructions (“Instructions S.W.2d not jury, attorney judge Davis's advised the predicated of the on facts case—however register ‘general that he wished objection accurate their statement of law in the ab- to the instructions tendered the Common- Id.). given.” stract —should wealth.’ specify He did not the reason for his See, Adm’r, objection [Hjaving specifically Ky., .... failed to Sears v. Frost’s object portion (“Instructing to that of the instruction in the abstract complains, practical necessity, which he now Davis failed to form is fair- sometimes a as in not, however, I in that it separately define find this definition erroneous when abstract the elements of the incorrectly implies that lia- in- offense are set out elsewhere bility prin- from the of the derives structions. If the abstract definition of the cipal put, offender. defendant Simply offense is identical to the instruction re- pursu- found to a crime offense, definition serves garding 502.020(2)(c) is ant “guilty to KRS no If the dif- purpose. abstract definition person.” another offense committed instruction, fers from the the case Although background the factual to com- here, the definition risks confu- 502.020(2) will plicity liability under KRS sion invites error.4 of a frequently involve the commission agree majority I with the cannot party, crime opinion’s language defense exclusively from the defen- liability stems definition, however, separate complicity and own dant’s own mental state actions improperly because that definition com- to the result of the omissions 502.020(2)(c) and mingles KRS party’s other conduct.5 Under KRS *14 502.020(l)(c): 502.020(2), a can be liable for defendant (c) that a “Complicity” person —Means if complicity in a crime even the other is of an committed guilty offense upon party causes the result who when, having a person another acts liability premised the defendant’s is prevent causing conduct to a with which constitutes a mental state make proper
result fails to a effort to do Accordingly, entirely.6 offense so. different 502.020, terms, 6.See, Commentary distinguishing e.g., KRS Official defining or and is sel- Id..). (Banks/Baldwin 1974); prejudicial.” dom deemed following example demon- serves to See, Houchin, Ky., 4. Ruehl agrees person another to strate: D with (1965) ("‘Abstract instructions which robbery. During the an armed commit legal principles general way clearly in a state robbery person a third is of this course iniquitous. Although are not in themselves If D and co- killed D's cohort. his erroneous, they improper technically are part agreed a conspirator had as of generally giving is not of such instructions anyone interfering with conspiracy to kill regarded They may prejudicial error. as endeavor, he be convicted under their could erroneous, however, they appear if to have In the subsection of intentional murder. misleading inap- been or the statements were liability agreement such an absence " of plicable (quot- the issues case.' Id. depend upon what the decision makers must Juries, 17a, ing Stanley's § Instructions have been with his state mind to find of Adm’r, Ed.)); supra 2nd v. Frost’s note 3 Sears If, resulting regard death. from all (“The avoiding instruc- [abstract reason circumstances, they find that he acted they tendency to a confuse is that have tions] manifesting extreme indif- with wantonness Ordinarily, jury. or it is deemed mislead life, guilty he is under ference to human specific simpler applica- to make concrete or murder; 507.020(l)(b) they if find KRS of particular of or tion the law facts of manifesting acted with wantonness that he Id.). in the case.” conditions indifference, guilty he is under no such manslaughter in the second KRS 507.040 See G. and William H. For- Robert Lawson they if that he acted with tune, Law, degree, but find 3-3(c)(3) Kentucky § Criminal causing in the death he is (LEXIS 1998) ("There recklessness is little substantive homi- guilty under 507.050 reckless requirements difference in conduct hand, they if 502.020(1) 502.020(2). On the other find cide. The first regard culpability with he had no relationship to speaks acts of in death, any charge guilty involv- he is offense; an second commission of homicide, notwithstanding conspir- ing relationship to speaks acts in conduct of such (italics original)). acy to rob. causing a result." Id. (a) Solicits, commands, can- engages or fairly conspiracy be described a with being “guilty per- such other an offense; offense committed son to commit the or person.” (b) Aids, counsels, or attempts to aid Perhaps the confusion in the majority person planning such or com- opinion stems from a misunderstanding of mitting offense; or the term “offense.” KRS de- (c) Having legal duty fines “offense” as a particular legislative offense, commission of the fails to sanction particular attached to conduct: make a effort do so. “Offense” means conduct for which a causing particular When result is to a imprisonment sentence term of or a offense, person element of an provided fine is by any law of this state culpability who acts with the kind of law, law, by any or local or ordinance to the result is political subdivision of this state or sufficient for the commission of the law, order, rule, any regulation of any offense of that offense when governmental instrumentality authorized he: adopt law to the same.7 (a) Solicits or engages conspiracy definition, Given this I believe that KRS with another engage 502.020 creates one form of complicity un- result; the conduct such der which a culpable party “guilty anof by another,” committed but this is (b) Aids, counsels, or attempts to aid *15 502.020(1), contained at KRS not KRS person in planning, another en- 502.020(2): gaging in the causing conduct Liability 502.020 for conduct result; of anoth- such er; complicity (c) Having a legal duty the result, conduct the fails to A person is an com- offense make a effort to do so.8 when, by mitted another person
the intention of promoting or facili- Each time the words “the offense” are tating the offense, commission of the 502.020(1), in used KRS they refer to the he: same “an antecedent: offense committed added). (emphasis Id. D’s cohort’s crime is which a sentence to a fine can be im- by added)). determined posed;” own mental state at (emphasis the Id. killing, time of the and D’s cohort could have 8. KRS 502.020. See committed also Robert G. Lawson intentional murder. KRS Fortune, 507.020(1)(a). Kentucky and William H. Criminal Law, 106, 3-3(b)(2) (‘‘KRS supra note 5 at 500.080(1). 500.080(5) 502.020(1) KRS See also KRS requires that there be 'an offense (" ‘Felony’ means an for by person.’ which sen- Complicity committed another in offense imprisonment tence to a term of burglary, example, of at least requires proof beyond (1) year one custody Department of the burglary reasonable doubt that the crime of may imposed;” (empha- Corrections by Id. was committed someone other than the added)); 500.080(10) (" sis KRS ‘Misdemean- requirement defendant. The is for commis- offense, (not or’ means an underlying other than a traffic guilt) sion of the offense infraction, offender). for which a principal sentence to a term of differently, Stated accomplice imprisonment prem- of not more than twelve ‘the conviction of an is thus upon proof imposed;” (emphasis months can be Id. add- ised of the commission of ed)); 500.080(17) (" (citations omitted, KRS ‘Violation’ means ....’” criminal act Id. ital- offense, infraction, added). an other original, than traffic emphasis ics in underlined contrast, by person.” By separate another the The trial court’s defini- complicity person” another tion was therefore erroneous in that it by words “committed do 502.020(2), implied complicity the substantive in- appear not all in KRS that 502.020(2)(a)(b) (c) predicated guilt refer to structions defendant’s & “the result” offense, only upon by rather than to “an offense another committed 502.020(2) person.” majority opinion’s defense “offense” referred to KRS of this language separate the offense necessitates this charged. opinion. I the majority opinion’s attempts find The majority Tharp also asserts that
justify the language the trial court’s raised at trial nor in the “neither briefs” complicity quota- definition selective any regarding trial issue whether unpersuasive. Although majority tions court’s instructions were erro- that sup- asserts the title to KRS 502.020 they did require neous because ports conclusion Tharp a factual finding make liability makes “guilty a defendant of an “was of Elaina parent custodian person,” offense committed another factually This statement is incor- Curtis.” “conduct,” word not “offense” appears did Although Tharp preserve rect. majority statute’s finds title. The also contemporaneous objection in the trial evidence for claim in the “that its offense” alleged court errors with any 502.020(2), language contained KRS but the form to homicide Commentary context and the Official instructions, two Tharp devotes almost language this section illustrate In pages of to this exact issue. her briefs with which the refers defen- fact, argument itself is written bold particular charged dant is rather than the and, Tharp in support argument, of her person. offense committed Fi- cites, bold, again in the learned treatise nally, majority turns to the Official majority today’s written the author of Commentary support, 502.020 for opinion: Commentary but while relates peppered
to KRS with lan- *16 Finding Require Did Not Instruction “a crime guage including committed Duty Legal That AHad another,” another,” “criminal act of the Crime To Prevent “an offense one conspira- committed tor,”9 appears no such language Commentary addressing
portion to murder instruction complicity 502.020(2),and, fact, Commen- Tharp Myrna under was convicted 502.020(2) tary liability discusses KRS jury was not was deficient because the charged”: terms of “offense required beyond reasonable to find a (1), Tharp legal “a provision Myrna this does doubt that had Unlike subsection causing the require duty that a the conduct prevent for defendant 502.020(2)(c). promote facilitate intend the com- result” in question. controlling mission of It is that the required Assuming arguendo an offense. death only that a act with the kind law at the time of victim’s defendant a legal duty for culpability sufficient commission created an affirmative a injury by charged.10 parent prevent physical of the offense Id. Kentucky 9. 1974 Crime Commission/LRC Commentary to KRS 502.020. party child,
third
parent’s
to that
under this instruction
if the
jury
beyond
still had to find
a reason-
jury
beyond
finds from the
a
evidence
Myrna
able doubt that
Tharp was the
doubt,
alia,
reasonable
inter
“[t]hat
of _
parent of the child in question so that
Defendant was [the mother]
the legal duty
the conduct
(victim).”
Cooper, Kentucky
Instruc
question actually applied to her. KRS
(Criminal) §
tions to Juries
10.08A
500.070(1);
In re
Winship,
U.S.
....
recognizes
This model instruction
90 S.Ct.
Instructions that
a jury
allow
to con-
summarize, I
To
do not
believe
vict without finding every element of the
complicity under KRS
renders a
offense
Winship’s
violate
requirement
defendant
“guilty of
offense committed
“every
necessary
fact
to constitute
person,”
I
and believe the trial
the crime” must
proven beyond
separate
court’s
definition of “complicity”
reasonable doubt.
process
Due
“re- was both unnecessary and erroneous.
I
quirefs] criminal convictions
upon
to rest
agree
result reached
the ma-
determination that the defendant
however,
jority,
because I do not believe
is guilty
every
element of the crime
the trial court’s
to homicide in-
with which he
charged, beyond
structions,
including the
sepa-
erroneous
reasonable doubt.” United States v.
definition,
rate
prejudiced
Gaudin,
506, 510,
515 U.S.
115 S.Ct. Tharp’s
rights.
substantial
able doubt contradicts the presumption
of innocence and invades the function of *17 jury, thereby violating process. due (Instruc-
The “definitions” instruction 2)
tion No. ... did nothing to ameliorate
the failure of the require instruction to
finding beyond a reasonable doubt that
Myrna Tharp legal duty had “a pre- PROGRAMS, INC., HIROC itself vent the conduct Tharp] [of Kenneth Managing and as General Partner question. result” in Development Program Delstar Gas 502.020(2)(c). Sys No. LTD. and Delstar Gas
Indeed, one model or form instruction tems, Inc.; Marga C. Lester Paul and based on the Lane Paul; Timothy specifically decision Paul; ret S. Mi C. requires to find the defendant Paul; Group Inc.; chael W. The Hiroc