*1 Clayton WISEMAN, Appellant, Kentucky, COMMONWEALTH of
Appellee.
Supreme Kentucky. Court of 1979.
Rehearing Denied Oct.
however, granted a new trial after deter- mining that the instruction to penalty prejudicially for murder was erroneous. The second trial commenced on voluntary manslaughter and fixed punishment years prison. in his Hence, appeal. appellant argues that the trial directing
court erred in not a verdict guilty of the trial for the conclusion ap failure of the to rebut Commonwealth pellant’s evidence that at the time of the allegedly commission of the offense he capacity. ap lacked mental pellant’s statutory. defense of provides 504.020 as follows: KRS “(1) responsible person A is not for criminal conduct if at the time of such conduct, of mental disease or as a result defect, capacity he lacks substantial ei- appreciate criminality ther to of his conduct or to conform conduct to Advocate, Jack E. Public Farley, Larry requirements of law. Marshall, Advocate, H. Asst. Public Frank- (2) As used the term chapter, in this
fort, for appellant. does not include ‘mental disease or defect’ only by re- abnormality an manifested Gen., Robert Stephens, Atty. F. Carl T. peated criminal otherwise antisocial Miller, Jr., Gen., Frankfort, Atty. Asst. conduct. appellee. (3) A defendant mental dis- may prove
STERNBERG, Justice.
defect,
section,
in this
in
ease or
as used
exculpation of criminal conduct.”
Wiseman was indicted
Boyd County
Jury
Grand
for the mur-
At the time the
killed his wife
wife,
der of his
Gloria Wiseman.
435.-
KRS
years
age
was 24
and she
21. He
place
010. The crime took
in
early
was a teacher and athletic coach in the
morning
hours of March
at the Greenup County High
fate-
School. On the
Ashland,
Lodge,
Western Hills Motor
in
night
high
ful
Robert and Gloria attended a
Kentucky.
police responded
to a call
tournament,
school district basketball
in
from the motel desk clerk and found the
company with several of their friends. Fol-
underwear,
clad
merely
to,
lowing
game they
were invited
scuffling
balcony
guest
with another
party
apartment
did attend a
at the
of their
lodge.
they
After
subdued the
Madden,
neighbor, Perry Joe
who lived be-
pellant, they entered his motel room and
people
apartment.
neath their
Several
severely
discovered Mrs. Wiseman’s
beaten
attendance;
listening
were in
some were
body.
asphyxia-
Death was attributed to
music,
cards,
playing
others were
and oth-
tion
aspiration
due to
of blood in the tra-
watching
ers were
television. The
chea and bronchial tubes.
playing
lant was
cards and Gloria was sit-
paid
with
ting
adjoining
October 1975
on a couch in an
room. Mad-
him,
representing
counsel
was first
tried
den
came
and sat down beside Gloria
court,
and convicted of murder. The trial
they engaged
in conversation. After
findings
diagnosis
awhile the
of Dr. Monte-
entered the room and
they
asked
doing.
what
were
The evidence
father stated that the
appellant’s
ro. The
does not disclose that Gloria and Madden appellant
psychotic tenden-
demonstrated
doing anything
were
talking;
other than
hospitalized for six to
cies in 1968 and was
nevertheless, the appellant, in what is de-
eight
testified that the
weeks. He further
voice, said,
scribed as a serious tone of
had suffered from some
mother
*3
“Perry,
sorry
jealous type.”
I’m
but I’m the
appellant
mental illness. The
did not testi-
thereafter,
Immediately
appellant
the
and fy.
his wife left the party and returned to their
At the
of all of the evidence
conclusion
apartment.
evening they
Later
in the
for both the
and the
Commonwealth
drove to the
Lodge,
Western Hills Motor
lant,
moved the court to di-
appellant
the
they
p.
where
in between 11:00
checked
m.
rect a verdict of not
because the
m. The killing
placed
and 1:00 a.
was
failed to rebut clear and
Commonwealth
about 3:00 a. m. Madden testified that the
convincing
appellant,
evidence that the
appellant demonstrated no bizarre behavior
killing,
the time of the
did not have sub-
parity,
at the
other than his statement of
capacity
appreciate
stantial
to
the criminal
jealousy.
nature of the act and that he did not have
night
lodge
clerk at the motor
testi-
capacity
substantial
to conform his conduct
fied that he detected no unusual behavior
requirements
to the
of law. The medical
part
appellant
on the
of the
when he
testimony,
equivocation, portrays
without
stated, however,
checked in for a room. He
appellant
the
victim
as a
of mental disorder
that sometime
yell-
later he heard someone
ap-
or defect.
It is without cavil that the
ing
God,”
“Oh Lord” and “Oh
so he went
wife,
pellant,
time he killed his
was
at the
outside to see what
happening.
was
He
appellant
acting
in a normal manner. The status
balcony.
He
immediately
police,
called the
respond-
Kentucky
propriety
who
of the law
as to the
promptly.
ed
Four officers subdued the
insanity
submitting
an issue of
to the
him,
handcuffed
placed
him jury
clearly
stated in Edwards v. Com-
police
way
cruiser. While on the
to monwealth,
(1977),
jail
the
against
beat his head
court said:
wherein this
wire screen separating the front and back
Although
foregoing
“.
.
.
dis-
seats of the cruiser.
arriving
After
at the
disposes
allegation
cussion
er-
police station the appellant
placed
in a
ror,
compelled point
we feel
to
out for the
jacket, appearing
strait
hysterical.
wild and
benefit
that the
of counsel
introduction
psychiatrists
Three
testified that the
insanity by
of proof of
a defendant does
pellant
capacity
lacked substantial
either to
place
a burden on
Commonwealth
appreciate the criminality of his conduct or
sane; rather,
prove
to
it entitles the
to conform his conduct
requirements
to the
defendant to an instruction to the
Montero,
of law. Dr. Francisco
a forensic
guilty by
find him not
they
psychiatrist
Hospital,
at Central State
properly
insanity,
reason of
and thus
inpatient
where
was an
from
makes the issue
matter
25, 1974,
April
diagnosed
March
to
jury’s
determination.”
schizophrenia,
condition as acute
quality
testimony
As to
of the
killing
active at the time of the
but in such
witnesses,
Tunget
v. Common-
expert
remission at the time of
examination as
wealth,
between Oftentimes, testify- lay accused. witnesses commit- the defendant had offense which customary as to the conduct of an ac- ted, of the lower he should be convicted nearly capaci- more reflect his mental cused many times that degree. We have held high sounding tagged names ty than the is reversi- give failure to that instruction imaginary complaints. self-induced established, ble error. . . . It is well points only that if the clearly A review of the record demon- to the conclusion that the accused strates that did have sufficient offense, it is not neces- guilty of but one finding basis for was sane at em- sary proper give the time of the commission of the crime. or instructions cannot be held to be jury determination It fol- bracing degrees. ... lower unreasonable; clearly consequently, it must it would not lows in such instances Commonwealth, Ky., stand. Trowel v. proper to be S.W.2d 530 accused struction relative to *4 degree.” guilty of the lower
Next, appellant charges that he judge was denied a fair trial when the trial position jury It that the appellant’s is the jury included in the instructions to the on him permitted to find should have been pre that the law insanity the statement manslaughter, which guilty involuntary of man sane. This issue was not every sumes manslaughter. degree voluntary is a of judge brought to the attention of the trial Bearing that this case was tried in mind not hav for consideration. The trial court effect, code went into before the criminal to opportunity been afforded the con definitions of we turn our attention to the issue, it not be considered sider this manslaughter involuntary as voluntary and Commonwealth, this court. Hamilton v. to be at that time. Rice v. understood 208 Ky., 580 S.W.2d Commonwealth, Ky., 472 512 S.W.2d fol- manslaughter is defined as voluntary appellant argues that he was judge denied a fair trial when the trial lows: that if it had a jury failed to instruct manslaugh- voluntary “The offense of degree reasonable doubt as to the willful, unlawful, and felonious ter is ‘the offense, appellant guilty find the it should malice, of anoth- killing, previous without degree. appel of the lower RCr 9.56. The er, affray or in sudden heat in a sudden lant was indicted and tried for the offense ap- necessary or passion, and not in the of willful murder. At the conclusion of the self-defense of parently necessary case, instructed the Mosser, slayer.’ Commonwealth voluntary of murder and the offenses Roberson’s See S.W. Further, manslaughter. involuntary Law and Proce- Kentucky Criminal New upon that if
judge instructed Edition, page 495.” dure, 2d Section doubt as to whole case it had a reasonable 435.022, time of the in effect at the KRS guilt, it should find not appellant’s crime, defined involun- commission of the appellant requested a guilty. Counsel for manslaughter as follows: tary instruction as to the de reasonable-doubt the death' “(2) person who causes Any instruc gree the offense and tendered an of conduct being reckless of a human respect. that In Cox v. Common tion in of a of conduct according to the standard wealth, (1973), this circumstances reasonable man under the court said: manslaugh- guilty involuntary of shall be in the instructions “Included degree and shall be ter in the second murder, voluntary were ones for court term jail for a imprisoned county involuntary man- manslaughter (12) or fined exceeding twelve months not degrees. first second slaughter in the exceeding five thousand dollars not jury as sum to instruct the court failed ($5,000) if it had a or both.” required by RCr 9.56 presented by appellant’s counsel, differing only at the trial was adequate sufficient or support a con- phraseology and not in substance. Instruc- involuntary viction manslaughter. prosecution tions in a criminal must have a Therefore, it was to instruct source within the framework of the evi- the jury that the could be produced found dence at the trial. Both the degree of that manslaughter. pellant Attorney and the Commonwealth’s objected involuntary-manslaughter to the allegation fourth court; given by instruction error is that he process was denied due ground correctly lant on the that it did not law by the trial court’s refusal to involuntary manslaughter define and the defense-tendered instruction on the pre Attorney charge Commonwealth’s sumption of innocence. At the close of all there was no evidence which would evidence, appellant’s trial counsel justify involuntary-manslaughter an moved the court to instruct the jury on the that, struction. The court instructed presumption of innocence and tendered the “If the believes from the evidence following instruction: case, doubt, beyond in this a reasonable “The accused presumed defendant is county that in this and before the be innocent proven until guilty. This of the indictment herein that the defend- presumption throughout continues ant, Wiseman, struck Glo- trial. This presumption requires the hands, ria Wiseman with his fists and if prosecution prove guilt beyond a rea- her, he did strike striking and that said sonable doubt. If prosecution does *5 reasonably was produce not calculated to prove guilt not beyond a reasonable death or striking, any, that said if was doubt, then by operation presump- of the part without intent on the of the defend- innocence, tion of the defendant must be produce ant injury you fatal and fur- (not) found guilty.” evidence, ther believe from the beyond a The refused to this instruc- doubt, reasonable that the killing of Glo- tion and instead instructed the jury as fol- ria Wiseman resulted from striking her lows: by the defendant with his fists and hands “The defendant Wise- and that striking said in occurred this man, presumed innocent proven until county and within twelve months before guilty beyond a reasonable doubt.” finding herein, the of the you indictment In Commonwealth, Edwards v. will guilty find the defendant of involun- S.W.2d 640 complaint was made that tary manslaughter punish- and fix his presumption-of-innocence the exceeding $5,000.00, instruction ment any at sum not was given. court, The trial discretion, your in or confinement in had instructed jury the that “The defend- county jail period your the at a of time in ant is presumed to be innocent of the exceeding year, discretion not one or charge guilt herein until his both, has been estab- imprisonment fine and of him.” by lished the proof beyond a reasonable Juries, Stanley’s Instructions to Vol. Sec. doubt. . . .” This instruction is al- 876. These instructions adequately defined most, word, word for identical to the in- the offense of involuntary manslaughter. given subject struction in the action. Ed- jury The the guilty found of dispositive wards is of the in issue this case. voluntary manslaughter pun- and fixed his presumption-of-innocence The instruction ishment years. at the maximum of 21 given in adequate. this action was jury could appellant guilty have found the
Appellant argues that the trial court of voluntary manslaughter and fixed his erroneously jury instructed the on involun punishment years, at two which is the mini- tary manslaughter. The involuntary-man mum. the jury Had slaughter given by instruction the court guilty involuntary of manslaughter as in- the substantially court, same as one tendered by structed it could have fixed his
240 $5,000 court, motion upon at a fine vides that “The and
punishment of not to exceed imprisonment year party, or at of one period by for a cause either sufficient shown by imprisonment. hearing or both fine postponement grant a by verdict returned jury fixed the This was denied. trial.” motion also pellant’s penalty imprisonment pe- for a over spite apprehension In of counsel’s greater riod of time than the maximum of representation record involuntary-manslaugh- authorized job, though even good reflects that did a This ter instruction. manifested an affirm- securing an There was acquittal. no part on ative action to not in judge’s of the trial discretion re- abuse appellant guilty find the of the lesser of- grant a continuance. fusing fense, positive purpose but with a of find- judgment is affirmed. guilty greater offense and fixing punishment pro- at the maximum PALMORE, CLAYTON, J.,C. REED part law. This of vided action on the STEPHENSON, JJ., concur. guilty in not involuntary-manslaughter under LUKOWSKY, dissent, J., files a which any prejudice. fails to struction manifest AKER, J., joins. Commonwealth, Ky., 390 Shanks S.W.2d LUKOWSKY, Justice, dissenting. (1965). commission Insanity at the time of the argu- simple answer to ordinarily question an offense is fact instructing ment that the court erred in However, jury. evidentiary for the involuntary manslaughter on is that fraternal twin of case we held that a movant, place, was not first jury which returned a verdict arbi- involuntary entitled to an instruction disregarded trarily substantial manslaughter. place, the second movant a verdict must be set insanity and such involuntary was not convicted under the against the evidence. flagrantly aside as and, manslaughter thirdly, it instruction Commonwealth, Deegans v. irrelevant since movant was convicted of higher degree of the offense of man- *6 slaughter. one way Here as there is all the evidence and to effect the accused was argues Finally, insane. There is no room for reasonable his for a motion continuance should have men differ. The conclusion granted, having granted, been and not been compelled. Any arbitrary other result that he a fair contends was denied trial. sec. 2 prohibited Ky.Const. for a made The motion continuance was for verdict of 6, 1978, The motion a directed ac- the case immediately before granted quittal should have been for trial. contends that called Counsel Brown, judge. 36 Utah uncertainty trial State v. personal anxiety over the (1909). I would reverse 102 P. 645-646 as Defender for employment Public judgment the case with and remand ability with his Boyd County interfered directions to do so. Although try proficiently. the case object Attorney Commonwealth’s did continuance, AKER, J., refused it. to state that I am authorized did,
He recess the trial until the joins in dissent.
following day. counsel On June for con
appellant filed a motion for a written
tinuance, personal accompanying it with his in which he that his uncer
affidavit stated Boyd
tain tenure as Public Defender ef deprive appellant of
County would pro- 9.04
fective assistance counsel. RCr