IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 15, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0215-MR
ANTONIO MARSONEL WILSON APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE JOHN R. GRISE, JUDGE NO. 19-CR-00461-002
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury of the Warren Circuit Court found Appellant Antonio Marsonel
Wilson guilty of murder by complicity. The Commonwealth and Wilson then
agreed to a sentence of 35 years. The trial court sentenced Wilson in
accordance with that agreement. Wilson now appeals to this Court as a matter
of right. Ky. Const. § 110(2)(b). After careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Wilson was in a romantic relationship with Selma Maropija.
Selma lived with her father Smajo Miropija, who did not like Wilson. On
February 3, 2019, Smajo and a friend returned to Smajo’s home where they
found Wilson. An altercation ensued during which Smajo and his friend
pushed Wilson, tried to drag him out of the house, and almost pulled his shirt off. After the altercation, Wilson paced the street outside the home and
commented to Selma’s friend Brittany Apple that he was not done with Smajo.
Wilson also later told Selma he would get back at Smajo.
The Commonwealth’s theory at trial was that Wilson hired an associate
named Jeffrey Lee Smith to kill Smajo for him. The proof established Wilson
drove a black Camry which ultimately was found to have accelerant in the
passenger seat, and that his fingerprints were found in a red Ford F-150 Smajo
had for sale on nearby Louisville Road. Smith testified to being taken to
Smajo’s workplace in the Camry and later driving the F-150.
On February 8, 2019, Smajo was murdered and his body burned at his
business, Mega Transport. There were numerous witnesses interviewed and a
complicated trail of evidence investigated by the police. Police collected video
surveillance footage from a number of locations that revealed the movements of
vehicles of interest that day, including the F-150 that Smajo had for sale on
Louisville Road. Wilson had keys to Mega Transport, where the key to the F-
150 was kept on a wall.
The surveillance footage showed that Smajo arrived at work at 9:28 a.m.
Around 10:15 a.m., a dark-colored passenger car parked near the F-150 Smajo
had for sale on Louisville Road. The two vehicles then drove off the parking lot.
At 10:18 a.m., a red Ford F-150 arrived at Mega Transport and one individual
entered the building. A black car followed behind the F-150, then passed by
Mega Transport several times while the F-150 was parked there. At 10:54
2 a.m., one person exited Mega Transport, got into the F-150, and departed
heading toward Louisville Road.
Around 10:57 a.m. the F-150 and black car returned to their previous
location on Louisville Road, where they stayed until 11:11 a.m. The black car
then departed, stopping momentarily near the F-150 before continuing on to
Louisville Road. At 11:32 a.m. the black car returned. The F-150 then pulled
onto Louisville Road.
The F-150 returned to Mega Transport at 11:38 a.m., and left again at
11:41 a.m. headed away from Louisville Road. Smoke was then visible coming
from the building. The F-150 returned to its previous location on Louisville
Road at 11:46 a.m. At 11:47 a.m., the black car stopped and picked someone
up from the F-150.
Around noon, Esnaf Ajanovic went to Mega Transport looking for Smajo
because he could not reach him by phone. Esnaf found the door locked and
left. Around 1:06 p.m., Smajo’s brother Arif Miropija went to Mega Transport
and found Smajo’s burnt body lying on the floor. The head was completely
blackened and fire was still present on the neck. An extension cord was later
discovered wrapped around Smajo’s neck. Subsequent medical examination
revealed that Smajo’s hyoid bone was fractured, his ribs were fractured, he had
a hemorrhage on the back of his skull possibly caused by blunt force trauma,
and the cause of his death was asphyxia via ligature strangulation.
On the day of the murder, Selma’s friend Apple asked Wilson to go with
her to check on Selma. Wilson had Apple pick him up at the Sonic on
3 Louisville Road. From there they drove to Mega Transport and saw police.
Wilson asked Apple to go back to Sonic so he could get some food. They then
parked in the parking lot of Apple’s apartment while Wilson ate. They then
returned to Mega Transport, where Apple got out and hugged Selma. Wilson
stayed in the car and spoke with Selma only on the phone.
Selma testified that the morning of the murder, she tried to call Wilson
several times but he did not pick up. Eventually Wilson told Selma he was at
his mom’s house, and that he was sick, had taken medication, and fallen
asleep. Selma went to Wilson’s house. While there, she received a call from a
relative letting her know something had happened to her father. Selma left
Wilson and drove herself to Mega Transport, where she learned her father had
died. She texted Wilson with the news, left the scene, and went to Apple’s
apartment. Selma then went home.
Around 5:00 a.m. the following day, Bowling Green police made a traffic
stop on Wilson. Police told Wilson detectives wanted to talk to him, but Wilson
declined to do so. Around 6:00 a.m., Wilson went to Selma’s house and stayed
for approximately an hour. Selma later texted Wilson to ask if he had anything
to do with her father’s death. Wilson said no, asked if Selma was serious, and
asked her if she thought he would do that or have something to do with it.
Wilson asked Selma to see him the evening of February 9, and she said no.
Selma and Wilson never talked again.
The morning after the murder, police observed a black Camry in the
driveway at the home of Wilson’s mother. They saw the vehicle at Wilson’s
4 house later that day. Around 7:00 p.m. that evening, police conducted a stop
of the black Camry while Wilson’s mother was driving it. During the stop,
Wilson’s mother repeatedly received calls from a phone number with a 270-
area code. Police called the number back and spoke to Wilson, who asked if
there was a warrant.
Selma and Wilson were scheduled to take a Valentine’s Day trip to San
Francisco from February 13 to February 17, 2019. However, around 9:51 p.m.
on February 9 Wilson began attempting to book a flight to the Philippines. He
successfully booked the flight the next morning at 4:32 a.m. and was on the
flight when it departed Chicago at 9:50 a.m. on February 10. Wilson traveled
under his own name, had a return ticket scheduled, and contends he took the
trip to visit a relative because he was upset by Selma’s doubts in him. He took
the trip with awareness police wished to speak with him, but also with
awareness no warrant had been issued. Evidence at trial showed the
Philippines has an extradition treaty with the United States. Selma learned of
Wilson’s trip to the Philippines from one of Wilson’s family members.
While Wilson was in the Philippines, the Bowling Green Police
Department arranged for cancellation of his passport and extradition back to
the United States. Before trial, Wilson filed a motion to exclude evidence of his
trip as consciousness of guilt, which the trial court denied.
Again, Wilson’s associate Smith was the person allegedly paid by Wilson
to kill Smajo. In an interview with police, Smith acknowledged beating Smajo
at Mega Transport on the day of the murder. Smith’s DNA was also found
5 under Smajo’s fingernails. Smith told police Wilson hired him to kill Smajo.
Wilson’s son Antonio Jr. also testified he told Selma after the murder that his
father had hired someone out of Memphis to kill Smajo. However, Antonio Jr.
also testified that his statement to Selma was false, and that he made it
because he had been mad at his father. Antonio Jr. also later told police he
thought Selma had set Wilson up.
Jessica McKinney knew Smith from working in a laundromat next door
to a liquor store where Smith worked, and had seen Smith talking to Wilson
there. In February 2019, she asked to speak with police after she was arrested
on a child support warrant. McKinney told police that on February 8, Wilson
asked her for Smith’s phone number. She further testified that she had sex
with Wilson, and that he had a 513-area code phone number. McKinney also
said she saw Smith on February 9, the day after the murder, and that he was
not acting normal, that he had a newly chipped tooth and was missing some
hair, that he made her feel uneasy, and that his breathing turned funny when
she read him a news article about Smajo’s murder.
Smith’s girlfriend Angel Cook testified at trial that Wilson’s phone
number changed from month to month. She further testified that Wilson did
business with Smith, and that a week before the murder she overheard a
conversation between Wilson and Smith regarding Smith being used as
“muscle, somewhere along the lines of a bouncer.” According to Cook, Smith
came home the day of the murder with his tooth knocked out and no shirt on,
6 only shaking his head when she asked what happened. Cook also admitted
she lied in her initial statement to police in order to protect Smith.
In late February police executed a search warrant at Wilson’s residence.
There they located a key and key fob for the black Camry. When police
searched the Camry, an accelerant-detecting dog alerted on the front passenger
seat. Gasoline was ultimately found to be present. Law enforcement also
pulled fingerprints from inside the door at Mega Transport and from the F-150
that were consistent with Wilson’s fingerprints.
Law enforcement also obtained cell phone records from two phones. The
first was the 270-area code phone registered to Wilson, while the second was a
513-area code prepaid phone connected to him by other witnesses. Use of the
513-area code ceased on February 8, 2019, while use of the 270-area code
phone ceased the following day at 8:21 p.m.
Before trial, Wilson moved to exclude as unreliable all evidence of cell
tower location data. The Commonwealth then identified F.B.I. Special Agent
Kevin Horan, a member of that agency’s Cellular Analysis Survey Team, as an
expert to offer an opinion that the historical cell tower data relating to Wilson’s
phones showed him in the general area at the time of the murder. Following a
Daubert hearing 1, the trial court denied Wilson’s motion, concluding that the
methodology was reliable and that Horan could testify so long as he referred
only to general areas and acknowledged the limitations of the technology.
1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
7 At trial, Smith admitted he had beaten Smajo on the day of the murder. 2
He testified that he first met Wilson a couple of years earlier, and that they did
business together. According to Smith, killing Smajo was Wilson’s idea
because Wilson was angry Smajo laid hands on him during the attack at
Smajo’s home. Smith testified Wilson offered him $10,000 and a new truck to
commit the murder.
Smith further testified he told Wilson he would have to think about his
offer. Smith stated Wilson took him to Mega Transport a couple of nights
before the murder to see the place. According to Smith, Wilson picked him up
on the day of the murder in a black Camry and took Smith to a truck. Smith
testified he fought with Smajo for a long time and did not want to kill him.
However, when Smith realized Smajo would see that Smith was driving the F-
150, he decided to knock him out. He testified that he struck Smajo with a tire
thumper three or four times in the chin and neck area.
Smith also testified that Wilson picked him up after he returned the Ford
F-150 to Louisville Road. Smith said Wilson stated at that time they had to be
sure Smajo was dead, so they went to get a container of gasoline, returned to
the F-150, and went back to Mega Transport. Smith testified that Wilson went
into the building and started the fire. According to Smith, they then went back
to get the black Camry and return the F-150 to Louisville Road. Smith got into
the Camry with Wilson, who took him back home. Smith acknowledged he did
2 At the time of Wilson’s trial, Smith had not received any offer for his testimony
and was still facing a life sentence. Court records indicate Smith ultimately plead guilty and was sentenced to twenty years on September 7, 2023. 8 not come forward until he was arrested, and admitted he did not tell the truth
in his initial interview with police.
Special Agent Horan also testified at trial. He testified that the cell tower
data indicated it would be logical to assume the 270 and 513 area code phones
were together on the day of the murder, but he did not know whether it meant
they were actually together. He said the data also showed that the phones
moved west together between 9:15 and 9:21 a.m. Special Agent Horan
acknowledged the maps he showed the jury were not meant to illustrate where
the phone was at particular times, but rather were a best estimate of the
general area where the phone could have been. He further acknowledged the
data was not highly accurate as to where the phones were, that he could offer
only general estimates, and that the phones could have been more than a mile
from the murder scene. He also testified that he purposefully ignored certain
outlying data points as “fliers,” considering those not particularly reliable. One
such example was a data point showing one of the phones in a field across the
river.
Wilson also presented expert testimony at trial on the issue of cell tower
location data from Prof. Adrian Lauf, a professor of computer science and
engineering at the University of Louisville who conducts research with wireless
communications. Dr. Lauf testified that Special Agent Horan’s report did not
support the idea that either phone was near the crime scene. He testified that
there are fewer cell phone towers in the area at issue, and thus the data suffers
from a higher error rate. He further stated that if any data points are
9 disregarded as unreliable “fliers,” it undermines the entire accuracy of every
location estimate given. Dr. Lauf also testified that two phones in the same
place will not necessarily create the same footprint, as one might appear to be
in Smith’s Grove to the north of Bowling Green with the other appearing to be
south of Bowling Green in Richpond.
Wilson moved to strike Special Agent Horan’s testimony, arguing his
analysis was unreliable given his admission that he disregarded “flier” data
points. The trial court denied the motion because Special Agent Horan had
provided only general locations, acknowledged the limitations of his analysis,
and Wilson had an opportunity to attack that analysis with his own expert.
The trial court instructed the jury on murder by complicity and
facilitation and first-degree manslaughter by complicity and facilitation, but
denied Wilson’s request for instructions on second-degree manslaughter by
complicity and facilitation. The jury found Wilson guilty of murder by
complicity. He was found not guilty of tampering with physical evidence and
abuse of a corpse. The Commonwealth and Wilson then agreed to a sentence
of 35 years, and the trial court sentenced in accordance with that agreement.
Wilson now appeals.
ANALYSIS
Wilson raises three issues for our review: (1) whether the trial court erred
in allowing evidence of Wilson’s trip to the Philippines after the murder;
(2) whether the trial court erred in admitting and refusing to strike Special
Agent Horan’s expert testimony regarding historical cell tower location data;
10 and (3) whether the trial court erred in refusing to instruct the jury on the
lesser-included offenses of manslaughter in the second degree by complicity
and by facilitation. We review each issue in turn, providing additional facts as
necessary.
I. Evidence of Wilson’s Trip to the Philippines Was Relevant and Not Unduly Prejudicial.
Wilson first argues the trial court erred by allowing the Commonwealth
to present Wilson’s trip to the Philippines as evidence of flight with
consciousness of guilt. Wilson’s allegation of error is preserved by his pre-trial
motion in limine which the trial court denied. KRE 103(d).
The trial court found that evidence of Wilson’s trip was admissible given
that Wilson traveled on a ticket purchased on the spot only a couple of days
after the murder. The trial court noted that Wilson of course could present the
jury with his innocent explanation for the trip. In its opening, the
Commonwealth argued Wilson had fled to the Philippines. The Commonwealth
asked various witnesses about Wilson’s trip and introduced as an exhibit the
booking details for his flight. For its final witnesses, the Commonwealth
elicited testimony regarding the process of Wilson’s return trip back to the
United States with law enforcement. The Commonwealth again referred to
Wilson’s trip to the Philippines in its closing argument.
We review an allegation of nonconstitutional evidentiary error for abuse
of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky. 2018). That
is, we ask whether the trial court’s ruling was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Id. (quoting Lopez v. 11 Commonwealth, 459 S.W.3d 867, 872-73 (Ky. 2015)). Wilson acknowledges
that evidence of his trip to the Philippines was likely relevant, but argues
admission of that evidence was nonetheless error because the evidence was
unduly prejudicial. We disagree.
Kentucky law has long held that evidence of “flight to elude capture or to
prevent discovery is admissible because ‘flight is always some evidence of a
sense of guilt.’” Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003)
(quoting Hord v. Commonwealth, 227 Ky. 439, 13 S.W.2d 244, 246 (1928)).
Such evidence is relevant because “it has a tendency to make the existence of
the defendant’s guilt more probable: a guilty person probably would act like a
guilty person.” Id. at 219.
Here, Wilson booked his travel to the Philippines on the morning of
February 10, 2019, two days after the murder. He booked the trip despite
having a separate trip already planned with Selma for the same timeframe, and
on the same day police asked him to come in for an interview. Also—and
unusually—he bought the ticket for same-day international travel to the
Philippines. These circumstances were sufficient to support a reasonable
inference that Wilson’s conduct was in furtherance of an effort to elude capture
or prevent discovery. As such, proof of his trip was highly probative of his
consciousness of guilt, and thus relevant.
Nonetheless, even where flight evidence is relevant, its admissibility
remains subject to the balancing test of KRE 403. Id. That is, evidence of
flight, even if relevant, is inadmissible if “its probative value is substantially
12 outweighed by the danger of undue prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” KRE 403.
Here, Wilson contends admission of evidence regarding his trip to the
Philippines resulted in undue prejudice. As the plain language of KRE 403
makes clear, only where otherwise relevant evidence presents a risk of undue
prejudice, i.e., prejudice that is unnecessary and unreasonable, should it be
excluded. See Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000). And
then, only if that risk substantially outweighs the probative value of the
evidence. As noted above, evidence of Wilson’s trip was highly probative of the
ultimate issue of guilt, given that he booked his trip for same-day international
travel two days after the murder, on the same day police sought to interview
him, and despite having an existing trip already planned with Selma. While
Wilson undoubtedly faced prejudice from admission of this evidence, he was
permitted to present his innocent explanation for the travel to the jury and
thus ameliorate that prejudice. Given the highly probative nature of the
evidence and Wilson’s ability to offer a competing innocent explanation for his
trip, the trial court did not abuse its discretion in concluding that any
prejudice to Wilson did not substantially outweigh the probative value of
evidence of his flight. We thus perceive no error in the admission of that
evidence.
13 II. The Trial Court Did Not Err in Allowing the Commonwealth’s Expert to Testify Regarding Historical Cell Tower Location Data.
Wilson next argues the trial court erred in allowing Commonwealth
expert Special Agent Kevin Horan to testify regarding the location of Wilson’s
cell phones on the day of the murder based upon cell phone tower data.
Wilson filed a pre-trial motion to exclude Special Agent Horan’s proposed
testimony as unreliable, which the trial court denied after holding a Daubert
hearing. After Special Agent Horan testified at trial, Wilson again moved to
strike his testimony as unreliable. Wilson’s allegation of error is thus
preserved. Meskimen v. Commonwealth, 435 S.W.3d 526, 534 n.8 (Ky. 2013);
KRE 103(a)(1).
KRE 702 governs the admission of expert testimony, providing that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
In applying this Rule, “the trial court functions as a ‘gatekeeper’ charged with
keeping out unreliable, pseudoscientific evidence.” Miller v. Eldridge, 146
S.W.3d 909, 913 (Ky. 2004). The trial court “must first assess the reliability of
the expert testimony . . . and then evaluate its relevance.” Id. at 914. “[T]he
consideration of reliability entails an ‘assessment into the validity of the
14 reasoning and methodology upon which the expert testimony is based.’”
Toyota Mot. Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (quoting Goodyear
Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000)). A trial court’s
determination regarding the reliability of expert testimony is a finding of fact
that we review for clear error. Miller, 146 S.W.3d at 915. In contrast, a trial
court’s determination of “whether the evidence will assist [the] trier of fact and
the ultimate decision as to admissibility” is a discretionary decision that we
review for abuse of that discretion. Id.
Here, we perceive no clear error in the trial court’s determination after
the Daubert hearing that the historical cell tower data methodology relied upon
by Special Agent Horan was reliable. We previously explained that
methodology in Holbrook v. Commonwealth, 525 S.W.3d 73, 80 (Ky. 2017):
[C]ell phones are essentially radios, as they use radio signals to contact cell towers. Each tower is unique and has identifiers that allow cell providers to determine what specific tower a phone communicated with during the logged activity. Most cell towers are engineered to cover a 360-degree radius which is typically broken down into three sectors. When a user makes a phone call, the cell phone connects to the tower and sector with the strongest signal, which is often, but not always, the closest tower to the caller. Through reviewing cell phone records, which reflect which tower a phone connects to at a specific date and time, Special Agent Horan could determine the general location of a phone at a particular time. By determining the cell phone tower and sector, Special Agent Horan can identify a general area or “footprint” within which the phone was located at a given time.
Significantly, however, such data “does not identify a cell phone user’s location
with pinpoint precision—it identifies the cell tower that routed the user’s call.”
Id. at 79 (quoting United States v. Davis, 785 F.3d 498, 515 (11th Cir. 2015)).
15 In Holbrook, we concluded there was no abuse of discretion in the trial
court’s conclusion that this methodology was sufficiently reliable to support
expert testimony, provided the expert acknowledges in his testimony the
limitations of the technology and its inability to identify a cell phone’s location
with pinpoint precision. Id. at 81. In the present case, the trial court found
that Special Agent Horan employed the same methodology at issue in Holbrook.
The trial court further—and appropriately—considered nonetheless whether
the methodology continues to enjoy scientific acceptance. See Meskimen, 435
S.W.3d at 535-36 (noting that while trial courts may take judicial notice of a
methodology’s reliability once accepted by an appropriate appellate court, “it is
the trial court’s duty to ensure that method is supported by scientific findings,
or at least not seriously questioned by recent reputable scientific findings,
before taking judicial notice of its acceptability”). The trial court’s conclusion
that the methodology remains reliable was supported by Special Agent Horan’s
testimony that the methodology is the gold standard worldwide, and that an
independent academic study within the last several years found the
methodology reliable. Moreover, the trial court further noted the methodology
also enjoys acceptance in the law enforcement and business communities. As
such, we find no clear error in the trial court’s conclusion following the Daubert
hearing that Special Agent Horan’s methodology was sufficiently reliable to
allow him to testify as an expert.
Wilson also argues the trial court should have stricken Special Agent
Horan’s testimony at trial because in his testimony he admitted to disregarding
16 outlying data points termed “fliers.” Horan testified the “fliers” were unreliable
because they were isolated and inconsistent with other groupings data points.
However, we do not conclude Special Agent Horan’s exclusion of data points he
deems unreliable rendered his testimony wholly inadmissible.
Special Agent Horan acknowledged to the jury that he had excluded the
unreliable data points. Wilson presented his own expert regarding the
historical cell tower location data, and also vigorously cross-examined Special
Agent Horan regarding his exclusion of the unreliable data points. Moreover,
Special Agent Horan specifically informed the jury that he could provide only
general estimates rather than pinpoint-precise proof of the cell phone locations.
Under these circumstances, Special Agent Horan’s admitted exclusion of
certain data points he deemed in his expertise to be unreliable went to the
weight rather than the admissibility of his testimony. Wilson was certainly free
to—and did—seek to undermine Special Agent Horan’s conclusions on that
basis. And the jury was properly left to weigh the competing expert testimony
and determine what it believed. As such, we perceive no error in the trial
court’s refusal to strike Special Agent Horan’s testimony.
III. Wilson Was Not Entitled to Jury Instructions on Manslaughter in the Second Degree by Complicity or Facilitation.
Finally, Wilson argues the trial court erred by refusing to instruct the
jury on the lesser-included offenses of manslaughter in the second degree by
complicity and by facilitation. Wilson requested such instructions and his
allegation of error is therefore preserved. RCr 9.54(2). When a defendant
contends the trial court erred either in failing to provide a requested jury 17 instruction or in providing an unwarranted jury instruction, we review the
decision for abuse of discretion. Commonwealth v. Caudill, 540 S.W.3d 364,
367 (Ky. 2018).
The trial court in a criminal case must instruct the jury on the whole law
of the case. RCr 9.54(1). Thus, the trial court must give “instructions
applicable to every state of the case deducible from or supported to any extent
by the testimony.” Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005).
A defendant “is entitled to an instruction on any lawful defense that he has,
including the defense that he is guilty of a lesser included offense of the crime
charged.” Id. (citation omitted) (citing Slaven v. Commonwealth, 962 S.W.2d
845, 856 (Ky.1997); Sanborn v. Commonwealth, 754 S.W.2d 534, 550
(Ky.1988)). “An instruction on a lesser included offense is required if the
evidence would permit the jury to rationally find the defendant not guilty of the
primary offense, but guilty of the lesser offense.” Id. (citing Commonwealth v.
Wolford, 4 S.W.3d 534, 539 (Ky.1999); Smith v. Commonwealth, 737 S.W.2d
683, 687 (Ky.1987)). In considering on appellate review whether a requested
instruction was warranted, we consider the evidence in the light most favorable
to the requesting party, id. at 347, asking “whether a reasonable juror could
acquit of the greater charge but convict of the lesser.” Allen v. Commonwealth,
338 S.W.3d 252, 255 (Ky. 2011).
As relevant here, a murder conviction requires proof the defendant
intended to and did cause the victim’s death. KRS 507.020(1)(a).
Manslaughter in the first degree requires proof the defendant intended to cause
18 serious physical injury and in fact caused the victim’s death. KRS
507.030(1)(a). The trial court provided the jury with murder and first-degree
manslaughter instructions on both complicity and facilitation theories, and the
jury found Wilson guilty of murder by complicity.
However, the trial court declined to instruct the jury as to second-degree
manslaughter by complicity or facilitation. A conviction for second-degree
manslaughter may be obtained by proving, as relevant here, that the defendant
wantonly caused the victim’s death. KRS 507.040(1). For purposes of our
criminal statutes, “[a] person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense when he is aware of
and consciously disregards a substantial and unjustifiable risk that the result
will occur or that the circumstance exists.” KRS 501.020(3). Our statute
governing complicity criminal liability provides:
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.
KRS 502.020(1).
Wilson first contends he was entitled to an instruction on second-degree
manslaughter by complicity because Smith testified that when he beat Smajo
he did not intend to kill him but rather only to render him unconscious so
19 Smith could escape. In other words, Wilson asserts that because the evidence
could support a finding Smith did not have the requisite state of mind for
murder (intent to kill) or first-degree manslaughter (intent to seriously injure),
the jury should have been allowed to consider whether Smith wantonly killed
Smajo. Wilson contends that such a finding would amount to a conclusion
that Smith committed only second-degree manslaughter, in which case the jury
could have found Wilson guilty of complicity to second-degree manslaughter.
Not so. Long-standing Kentucky law holds that a principal’s state of
mind is irrelevant to determining the criminal complicity liability of his
accomplice: 3
The principal actor’s mental state with respect to his own conduct, or the degree of his criminal liability, is largely immaterial to the criminal liability of an accomplice or the degree thereof. . . . [E]ven in the pre-penal code era, the degree of an accomplice’s liability was determined by his or her own mens rea and not that of the principal . . . That proposition was codified in KRS 502.030(1) [which provides that in] any prosecution for an offense in which the criminal liability of the accused is based upon the conduct of another person pursuant to KRS 502.010 and KRS 502.020, it is no defense that . . . such other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense. . . . [I]f an accomplice can be convicted despite the acquittal of the principal, it follows that the degree of the
3 In the context of criminal complicity liability, the “principal” is the person who
commits the crime and the “accomplice” is the person who solicits, commands, conspires, aids, counsels, or attempts to aid the commission of the offense, or who fails to perform a legal duty to prevent the offense. See Tharp v. Commonwealth, 40 S.W.3d 356, 365 (Ky. 2000). Here, describing Wilson as Smith’s “accomplice” is somewhat counter-intuitive given that it was Wilson’s idea to kill Smajo, his apparent motivation for the killing was to avenge Smajo’s attack on him, and he solicited Smith (who had never met the victim) for that purpose. Nonetheless, because Smith killed Smajo following Wilson’s solicitation, Smith is the principal and Wilson the accomplice for purposes of assessing criminal complicity liability. 20 offense of which an accomplice is convicted does not depend upon the degree of which the principal is convicted.
Tharp, 40 S.W.3d at 365. Thus, any change-of-heart Smith may have had
during his attack on Smajo is irrelevant to determining Wilson’s criminal
complicity liability. It is Wilson’s state of mind rather than Smith’s that
determines the level of Wilson’s criminal complicity liability. There was no
evidence Wilson enjoyed a similar change-of-heart. Indeed, the evidence was
simply that Wilson solicited Smith to murder Smajo, and that Smith alone
decided during the course of the attack that he did not want to kill Smajo. As
such, Smith’s change-of-heart did not entitle Wilson to a second-degree
manslaughter by complicity instruction.
Wilson also argues he was entitled to a second-degree manslaughter by
complicity instruction because Smith’s girlfriend Angel Cook overheard a
conversation between Wilson and Smith regarding Smith being used as
“muscle, somewhere along the lines of a bouncer.” Wilson contends that based
upon this statement, a reasonable juror could conclude Wilson did not ask
Smith to kill or seriously injure Smajo, but rather only to engage in some other
conduct that resulted in Smith wantonly killing Smajo.
However, in considering the evidence presented at trial as a whole, no
reasonable juror could infer that the comment overheard by Cook referred only
to Smith injuring rather than killing Smajo. The evidence at trial was that
Wilson asked Smith to kill Smajo, not do something else to him. Smith
testified Wilson asked him to kill Smajo. Wilson’s son also testified he told
Selma Wilson had hired someone to kill Smajo. In stark contrast, Wilson 21 points us to no evidence presented at trial that he solicited Smith to do
something other than killing Smajo. Given this context, no jury could draw a
reasonable inference that the statement overheard by Cook was a reference to
Smith doing something other than killing Smajo. Thus, even considering this
evidence in the light most favorable to Wilson, it does not support a reasonable
inference that Wilson asked only that Smith injure Smajo rather than kill him. 4
As such, we find no error in the trial court’s refusal to instruct the jury as to
second-degree manslaughter by complicity.
Finally, we also find no error in the trial court’s refusal to provide an
instruction as to second-degree manslaughter by facilitation. Criminal
facilitation liability arises when the defendant, “acting with knowledge that
another person is committing or intends to commit a crime, . . . engages in
conduct which knowingly provides such person with means or opportunity for
the commission of the crime and which in fact aids such person to commit the
crime.” KRS 506.080(1). “Facilitation reflects the mental state of one who is
‘wholly indifferent’ to the actual completion of the crime.” Baker v.
Commonwealth, 545 S.W.3d 267, 280 (Ky. 2018) (quoting Perdue v.
Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995)). Thus, where there is no
evidence of such indifference, a facilitation instruction is not warranted. Id.
As noted above, the trial court provided murder and first-degree
manslaughter facilitation instructions. A second-degree manslaughter
4 As noted above, the trial court provided the jury with a first-degree
manslaughter by complicity instruction. Thus, the jury was allowed to consider whether Wilson only intended for Smith to seriously injure rather than kill Smajo. 22 facilitation instruction was warranted only if the jury could reasonably believe
1) that Smith did not intend either to kill or seriously injure Smajo, 2) that
Smith acted only wantonly, meaning he was aware of and disregarded a
substantial risk that he would kill Smajo, and 3) that Wilson, being wholly
indifferent to Smith’s commission of the crime, knowingly provided him with
means or opportunity to commit the crime and in fact aided Smith in the
commission of the crime. The evidence at trial could not support such
findings.
First, even crediting Smith’s testimony that he did not intend to kill
Smajo as true, no reasonable jury could find that he did not, at a minimum,
intend to seriously injure Smajo. Serious physical injury includes an injury
which creates a substantial risk of death. KRS 500.080(18). Smith testified
that he intentionally struck Smajo several times in the chin and neck area with
a tire thumper with the hope of knocking him unconscious. Such conduct
plainly was an intentional infliction of physical injury that created a
substantial risk of death. Thus, no reasonable juror could find that Smith
acted only wantonly, rather than with an intention either to kill or to inflict
serious physical injury. 5
5 Wilson also argues because Smith testified he was high on methamphetamine
at the time of the killing, the jury could have found he acted only wantonly by reason of voluntary intoxication. However, to be relevant to criminal liability, there must be evidence not only that the defendant was intoxicated, “but that he was so [intoxicated] that he did not know what he was doing.” Lickliter v. Commonwealth, 142 S.W.3d 65, 68 (Ky. 2004) (citing Springer v. Commonwealth, 998 S.W.2d 439 (1999)). Here, Smith testified in great detail regarding his recollection of the attack on Smajo, and there was nothing in his testimony to support a reasonable finding he was so intoxicated he did 23 Likewise, no reasonable jury could find that Wilson was wholly
indifferent to Smith’s commission of the crime as required to warrant a
facilitation instruction. There evidence was that Wilson solicited Smith to
commit the crime as revenge for Smajo’s attack on Wilson. Wilson points us to
no competing evidence that Smith committed the crime of his own volition with
Wilson’s participation limited to that of a dispassionate and uninterested
accomplice. As such, because no reasonable jury could find that Wilson was
wholly indifferent to Smith’s commission of the crime, the trial court did not err
in refusing to provide a second-degree manslaughter by facilitation instruction.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Warren Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General
not know what he was doing at that time. As such, Smith’s voluntary intoxication is wholly irrelevant to his or Smith’s criminal liability. 24