Alexander v. Commonwealth

766 S.W.2d 631, 1988 Ky. LEXIS 51, 1988 WL 92827

• Court: Kentucky Supreme Court
• Decided: September 8, 1988
• Docket: Nos. 87-SC-81-MR, 87-SC-82-MR
• Status: Published

Opinions

GANT, Justice.

Appellants herein were convicted of wanton murder and first degree wanton endangerment as the result of certain incidents which occurred at the Baby Grand Lounge in Louisville. They were sentenced to life imprisonment and one year, respectively, the sentences to be served concurrently.

Appellants had been in the lounge earlier on January 26, 1986, with a friend by the name of McDonald, who was apparently a cousin of at least one of the appellants. McDonald had started a fight, was subdued by employees of the lounge, and was subsequently arrested. Appellants and others sought unsuccessfully to dissuade the officers from making the arrest. Later in the evening, appellant Hyde secured a shotgun, and the group drove back to the lounge. Appellant Alexander then fired a shotgun blast through the front windows of the lounge, which lounge was occupied by at least a dozen people at the time. The shot shattered two windows, penetrated a metal sign, and struck Michael Green, an employee of the lounge, killing him by virtue of a shot to the head.

The sole issue on this appeal is whether the single act of firing the shotgun into the building can be the basis of a conviction for both wanton murder and for wanton endangerment in the first degree. Appellants argue that such convictions violate the appellants’ constitutional and statutory rights against double jeopardy under Amendment Y of the Constitution of the United States, § 13 of the Constitution of Kentucky, and the statutory prohibition under KRS 505.-020 that “... a defendant ... may not be ... convicted of more than one offense when one offense is included in the other

Appellants’ arguments ignore the facts of this case. Although it is true that a single course of conduct is involved and appellants could not have been convicted of both offenses against Michael Green, here there was more than one victim. KRS 505.020 is a codification of the rule set down in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932), which case states:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

KRS 505.020(1) provides: “When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense.”

Thus, neither Blockburger nor the statute is violated when the single act or course of conduct constitutes an offense against more than one person. If the single act had caused the death of two persons, the appellants could certainly have been convicted of two murders. The instruction herein relating to the wanton endangerment count authorized the jury to find the appellants guilty if their act posed a substantial danger of death to a person or persons “exclusive of Michael Green.” The evidence was sufficient to justify a verdict of guilty under these instructions.

The Jefferson Circuit Court is affirmed.

All concur except LEIBSON, J., who dissents and files herewith a separate dissenting opinion.