Burke v. Commonwealth

506 S.W.3d 307, 2016 Ky. LEXIS 631, 2016 WL 7655707
CourtKentucky Supreme Court
DecidedDecember 15, 2016
Docket2014-SC-000472-DG
StatusPublished
Cited by14 cases

This text of 506 S.W.3d 307 (Burke v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke v. Commonwealth, 506 S.W.3d 307, 2016 Ky. LEXIS 631, 2016 WL 7655707 (Ky. 2016).

Opinion

OPINION OF THE COURT BY

JUSTICE KELLER

A Kenton County jury convicted Devlin Burke of three counts of second,.degree assault, one count of fourth degree assault, and being a persistent felony offender in the second degree. The jury recommended a sentence of seventeen-years’ imprisonment. Following trial, the court imposed [312]*312the recommended sentence and made a finding that Burke’s actions constituted a hate crime under Kentucky Revised Statute (KRS) 532.031. Burke appealed his conviction to the Court of Appeals, arguing that KRS 532.031 is unconstitutional as written and as applied. He also argued that the trial court made a number of errors regarding the admission and exclusion of evidence and in instructing the jury. Although it found some errors occurred, the Court of Appeals affirmed. We granted discretionary review in order to address the issues raised by Burke, in particular, his argument that KRS 532.031 is unconstitutional. Having reviewed the record, we affirm Burke’s convictions, although for somewhat different reasons than the Court of Appeals. However, we reverse the trial court’s designation of Burke’s second-degree assaults as hate crimes and remand for entry of a judgment consistent with this opinion.

I. BACKGROUND.

The following is essentially undisputed. At approximately 1:00 a.m. on August 15, 2010, Burke, Erica Abney, Pam Keller, Tim Searp, and Charles Clark were sitting in Clark’s car, which was parked in a gas station parking lot. Katie Meyer, Dee Sprague, Ondine Quinn, Connie Kohlman, and several others were walking across the gas station parking lot as they travelled from one neighborhood bar to another. As Sprague and Quinn passed behind Clark’s car, Clark, who did not see them, began to back out of his parking space. Quinn hit the trunk of Clark’s car twice and Sprague said, “Whoa, whoa, we’re here. Wait.” Keller and Abney began yelling at Quinn and Sprague from inside the car, and eventually everyone got out of the car. Keller and Abney confronted Quinn and Sprague while yelling sexually derogatory remarks at them; Searp ran after Kohlman, who was ahead of Quinn and Sprague, and he hit her, pushed her head against a wall, knocked her to the ground, and kicked her. Although Burke denied doing so, Meyer testified that she saw Burke kicking Kohl-man and that Burke kicked her when she tried to protect Kohlman. Meyer also testified that, during this confrontation, Burke yelled, “fucking dykes” and “clit lickers,” based on his apparent perception of the women’s sexual orientation.

At some point a crowd gathered across the street from the gas station and a van pulled into the gas station parking lot. Although the timing is unclear from the witnesses’ testimony, Burke, who by then had pulled out a knife, stabbed one of the men in the crowd, Christopher Pfeiffer, in the neck. The driver of the van, James Patton, and at least one of his passengers, Justin Sizemore, got out of the van and confronted Burke, who sliced Patton across the stomach. Burke also cut another passenger who was getting out of the van, Preston Akemon. The police arrived shortly thereafter and arrested Searp, Abney, and Burke.

Burke’s defense was two-fold: he did not attack Kohlman or Meyer; and he was acting in self-defense when he stabbed Pfeiffer, Patton, and Akemon. In support of the first defense, Burke offered Searp’s testimony that it was he who attacked Kohlman; that he never saw Meyer; and that Burke was not involved in that part of the altercation. As to self-defense, Burke testified that, when Keller and Abney got out of the car, he tried to get them to calm down and return to the car. He denied hitting Kohlman or Meyer and stated that Pfieffer and another man from the crowd came at him and wanted to fight. Burke testified that he began backing away from those two when he was confronted by Patton, who was armed with a hammer, Ak-emon, who was armed with a knife, and Sizemore. At that point, Pfieffer tackled [313]*313Burke, and Burke stabbed Pfíeffer in the neck to get away from him. Burke then stabbed Akemon and Patton as he made his way back to Clark’s car. When he heard sirens, Burke threw away the knife and got in the car.

Based on the preceding, the jury convicted Burke of the crimes delineated above. We set forth additional facts as necessary below.

II. STANDARD OF REVIEW.

The various issues raised by Burke require us to apply different standards of review. Therefore, we set forth the appropriate standard as we address each issue.

III. ANALYSIS.

A. KRS 532,031 is constitutional as written and as applied to Burke.

1. As written.

Burke raises a number of issues regarding the constitutionality of KRS 532.031, Kentucky’s “hate crimes” statute. Burke properly preserved the issues, which we review de novo. Greene v. Commonwealth, 349 S.W.3d 892, 898 (Ky.2011). In applying that standard, we presume that the General Assembly did not intend for this statute to be unconstitutional. Rice v. Commonwealth, 492 S.W.3d 563 (Ky.2016).

At the outset, we note that KRS 532.031 provides, in pertinent part, as follows:

(1)A person may be found by the sentencing judge to have committed an offense specified below as a result of a hate crime if the person intentionally because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals violates a provision of any one (1) of the following:
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(a) KRS 508.020 [assault in the second degree], ... or 508.030 [assault in the fourth degree];
(2) At sentencing, the sentencing judge shall determine if, by a preponderance of the evidence presented at the trial, a hate crime was a primary factor in the commission of the crime by the defendant. If so, the judge shall make a written finding of fact and enter that in the court record and in the judgment rendered against the defendant.
(3) The finding that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the sentencing judge as the sole factor for denial of probation, shock probation, conditional discharge, or other form of nonimposition of a sentence of incarceration.
(4) The finding by the sentencing judge that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the Parole Board in delaying or denying parole to a defendant.

KRS

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Cite This Page — Counsel Stack

Bluebook (online)
506 S.W.3d 307, 2016 Ky. LEXIS 631, 2016 WL 7655707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-commonwealth-ky-2016.