IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : AUGUST 27, 2009 NOT TO BE PUBLISHED
Sixyr-mtr Courf -of
CHARLOTTE HALL APPELLANT
ON APPEAL FROM WOLFE CIRCUIT COURT V HONORABLE FRANK A. FLETCHER, JUDGE NO . 05-CR-00075
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
On May 6, 2006, thirteen-year-old Dylan McIntosh died as a result of
acute methadone intoxication . Following a jury trial in January 2007, Dylan's
mother, Charlotte Hall, was found guilty of murdering her son by wantonly
permitting him to ingest the drug . Hall appeals as a matter of right from the
March 9, 2007 Judgment of the Wolfe Circuit Court incorporating that verdict
and sentencing her, in accord with the jury's recommendation, to thirty years
and one day in prison . Hall contends that the trial court erred (1) by denying
her motion for a directed verdict; (2) by permitting the introduction of hearsay
statements by her co-defendants ; (3) by permitting the introduction of prior
bad acts evidence ; (4) by refusing to instruct the jury on facilitation of wanton
murder; (5) by refusing to strike a juror for cause; and (6) by coercing the jury
to reach a sentencing recommendation . We agree with Hall that the evidence did not support a finding of murder and so must reverse the trial court's
judgment and remand for additional proceedings .
RELEVANT FACTS
Hall did not testify at trial, but the jury heard an audio recording of her
interview with Detective Tim Gibbs of the Kentucky State Police . Hall told
Detective Gibbs that on May 5, 2006, she and Dylan had accepted the
invitation of a friend, Jamie Watson, to spend the night at the Campton,
Kentucky, residence Watson shared with another of Hall's friends, Jim Land.
According to Hall, Dylan, who suffered from attention deficit hyperactive
disorder (ADHD), was "hyper" when they reached the Watson/ Land residence,
and because she was out of the medicine-Depakote-prescribed for his
condition, she gave him one of her Klonopin tranquilizers instead . She later
learned that Watson had also given Dylan a Klonopin.
That night, according to Hall, the three adults engaged in heavy drug
use . Land had recently filled his prescription for methadone, a synthetic
narcotic, and all three adults ingested methadone intravenously and by
"snorting" it . They also ingested other prescription drugs. Hall stated that at
some point during the evening Watson had crushed one of Land's methadone
pills into a powder, had divided the powder into four "lines," and that she, Hall,
had acquiesced in Land's and Watson's giving one of the "lines" to Dylan. She
claimed that she did not actually see Dylan ingest the methadone, because he
carried it into another room, but she admitted that she had given him a fifty-
dollar bill to roll into a straw for the purpose of "snorting" the methadone powder. She also stated that at some other point during the night Dylan told
her that Watson had given him a "bunch" of methadone pills, and that rather
than taking the pills away from him she had said, "Dylan, you don't need the
god-damned methadones . Put the sons-of-bitches up. You've got school
tomorrow . We're supposed to be straightening up ."
According to Hall's statement, Dylan went to sleep at about 11 :00 p.m.,
and at about 6:00 or 6:30 a.m ., she tried to rouse him for school, but he was
snoring deeply and would not be roused. She fell back to sleep, and at about
10 :00 a.m., when she next awoke, Dylan's lips had turned blue. She tried
throwing water in his face, shaking him, "blowing in his mouth," and
"pounding on his chest," but she could not awaken him.
Soon thereafter Land's mother, who lived nearby, came to the door with a
neighbor looking for Land. She testified that upon seeing Dylan's lack of color
she called for emergency assistance. Dylan was pronounced dead at the
Appalachian Regional Hospital in West Liberty, Kentucky . Post-mortem
analysis indicated a blood-methadone level of 0.25 milligrams per liter, and the
medical examiner determined that Dylan died from acute methadone
intoxication .
Hall, Land, and Watson were all indicted in conjunction with the death .
Hall was tried separately . Although the Commonwealth presented additional
evidence confirming the presence of methadone in the Land/Watson residence,
confirming the fact that the three adults had ingested methadone and other
drugs, and confirming Dylan's death prior to or soon after his arrival at the hospital, Hall's statement and the post-mortem examiner's testimony assigning
the cause of death were the crux of the Commonwealth's case . Hall contends
that that evidence was insufficient to support a finding of wanton murder . We
agree .
ANALYSIS
I. The Commonwealth's Proof Did Not Support A Finding Of Wanton Murder, But Did Support A Finding Of Reckless Homicide .
As the Commonwealth correctly notes,
[o]n motion for a directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth . If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Benham, 816 S.W .2d 186, 187 (Ky. 1991) (citation omitted) .
A directed verdict, moreover, should be granted only
when the defendant is entitled to a complete acquittal[,] i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses .
Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978) . Accord, Nichols v.
Commonwealth , 142 S.W. 3d 683 (Ky. 2004) . In cases where there may be insufficient evidence to satisfy the burden of proof on a primary offense, but
there is sufficient evidence to satisfy the burden of proof on a lesser-included
offense, the issue regarding the insufficiency of the evidence is preserved by
making a timely objection to the jury instruction on the unproved offense .
Campbell v. Commonwealth , supra; Kimbrou h v. Commonwealth , 550 S.W .2d
525 (Ky. 1977) . In this case, Hall moved for a directed verdict of acquittal, but
she did not object on sufficiency grounds to the jury instruction charging her
with wanton murder or to either of the instructions charging her with the
lesser-included offenses of second-degree manslaughter or reckless homicide .
Her directed verdict motion was properly denied, therefore, if the evidence was
sufficient to support the least of these offenses, that of reckless homicide .
Reckless homicide is defined in KRS 507.050, which provides that
A person is guilty of reckless homicide when, with recklessness he causes the death of another person .
"Recklessness" is defined in KRS 501 .020(4) :
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists . The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation .
As we noted in Lofthouse v . Commonwealth, 13 S .W.3d 236 (Ky. 2000), another
case in which the defendant was charged with reckless homicide for having
supplied a fatal overdose of illicit drugs,
[w]hen wantonly or recklessly causing a particular result is an element of an offense, the element is not 5 established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware.
Id. at 239 (quoting KRS 501 .060(3)) .
In Lofthouse , the defendant shared his supply of cocaine and heroin with
the decedent . The defendant had used similar amounts of cocaine and heroin
previously without critical consequences, and he had previously observed the
decedent use similar amounts of cocaine . We reversed the defendant's reckless
homicide conviction because, although the Commonwealth had proved the
toxic qualities of the drugs involved and had proved that the amounts of the
drugs found in the decedent's body could be fatal, it had failed to prove that
a layperson, such as Appellant, should reasonably have known that there was a substantial risk that the amount of cocaine and heroin ingested by [the decedent] would result in his death.
Id. at 241 . It was not enough, we held, for the Commonwealth to prove merely
"that the dosages were fatal to [the decedent] ." Id. at 242 .
In Powell v. Commonwealth , 189 S.W.3d 535 (Ky. 2006), on the other
hand, a methamphetamine overdose case, we upheld a reckless homicide
conviction where the drug supplier, knowing that the victim had recently
suffered an adverse reaction to methamphetamine from which she had barely
"pulled through," administered intravenously what the post-mortem examiner
characterized as a lethally large dose of that drug. A jury could properly
conclude, we held, that a reasonable person in those circumstances would
have realized that methamphetamine in the amount the defendant injected into
the victim posed a substantial risk of killing her.
6 This case lies somewhere between Lofthouse and. Powell . Unlike
Lofthouse , in which an adult voluntarily ingested a quantity of illicit drugs that
killed him, this case involves the provision of potentially dangerous drugs to a
child. Unlike Powell, on the other hand, there was no medical testimony or
other evidence estimating or characterizing the amount of methadone Dylan
ingested, nor was there evidence that Hall was on notice of Dylan's particular
reaction to methadone .
A conviction of reckless homicide in this case required proof beyond a
reasonable doubt that Dylan's ingestion of methadone caused his death ; that
there was a substantial and unjustifiable risk that Dylan would die if he
ingested the methadone which the adults furnished him; and that the risk of
Dylan's death was of such a nature and degree that Hall's failure to perceive it
constituted a gross deviation from the standard of care that a reasonable
person would observe in the circumstances, i. e., that Dylan's death was
foreseeable as a reasonable probability. KRS 507 .050 ; KRS 501 .020(4) . In
Lofthouse we rejected the Commonwealth's argument that schedule I and
schedule 11 controlled substances are inherently dangerous and always pose a
risk of death. As noted above, we held instead that beyond the drugs
themselves, proof of risk and foreseeability are required:
the Commonwealth needed to prove not only the toxic qualities of cocaine and heroin, but also that a layperson, such as Appellant, should reasonably have known that there was a substantial risk that the amount of cocaine and heroin ingested by [the decedent] would result in his death . 13 S .W.3d at 241 . Much as in Lofthouse, beyond the drug itself, there was
simply no proof in this case tending to establish either the magnitude or the
foreseeahility of the risk . There was no evidence, for example, that Dylan, his because of youth or some other reason, may have been unusually
susceptible to methadone poisoning, nor was there evidence that the amount of
the drug he ingested posed a substantial risk of poisoning . In the case of a
child as young as this, however, we are unwilling to adhere mechanically to the
proof requirements of Lofthouse . We are convinced, rather, given the universal
recognition that children are more susceptible to the hazards of illicit drugs
than are adults and given our law's overriding policy of protecting children
from those hazards' that a reasonable jury could find, beyond a reasonable
doubt, that providing a thirteen-year-old child with a "bunch" of ten milligram
methadone pills, particularly knowing that the child had already ingested. two
Klonopins and a fourth of a methadone pill, posed a substantial risk of death,
and that Hall grossly deviated from a reasonable standard of care by failing to
perceive this risk and acting to avert it. Because the evidence thus justified a
finding of reckless homicide, the trial court did not err when it denied Hall's
motion for a directed verdict.
This conclusion does not end the analysis, however. Hall's contention on
appeal is that the evidence did not support her conviction for wanton murder.
As noted above, Hall failed to preserve this issue by timely objecting to the
Seefor example KRS 218A.1401, enhancing the penalty for drug trafficking when drugs are transferred to a minor, and KRS 530.064, making it an offense to involve a minor in illegal controlled substances activity. 8 wanton murder instruction, but she seeks review of the unpreserved error
under the palpable error standard of RCr 10.26. Pursuant to that rule, an
unpreserved error may be deemed palpable only if it is indeed palpable, i. e.,
clear from the record, and only if it affects the defendant's substantial rights
and has resulted in manifest injustice, i.e., "the required showing is probability
of a different result [absent the error] or error so fundamental as to threaten a
defendant's entitlement to due process of law ." Martin v . Commonwealth, 207
S.W .3d 1, 3 (Ky. 2006) .
Wanton murder, of course, is a more culpable offense than reckless
homicide with correspondingly greater proof requirements. Hall's conviction of
wanton murder required proof beyond a reasonable doubt that there was a
grave risk that Dylan would die if he ingested the methadone his adult
caretakers furnished him, and that Hall knew of but consciously disregarded
that risk under circumstances manifesting extreme indifference to human life.
KRS 507 .020; KRS 501 .020(3) . As noted above, however, the Commonwealth
failed to adduce evidence tending to establish the degree of risk the methadone
posed in this case, as required by Lofthouse , and we decline to presume, even
in the case of a child, that it posed a grave risk of death.
Hall's statement, moreover, does not indicate that she recognized but
disregarded such a risk. Although, as the Commonwealth notes, Hall did state
that she accepted Watson's invitation to spend the night "against my better
judgment," that statement hardly amounts to evidence that she perceived a
grave risk of death . On the contrary, Hall apparently did not anticipate that Dylan would ingest more than the "line" of methadone, and the only concern
reflected in Hall's statement about his ingesting an additional amount was that
it would render him unfit for school the next day. While it is appalling, of
course, that a parent would allow her child to ingest methadone, the murder
statute, KRS 507.020, applies to parents no differently than to anyone else .
The proof that statute requires was not presented in this case, and no rational
juror could have found otherwise . Accordingly, we agree with Hall that the trial
court erred by instructing the jury on wanton murder.
Was the error palpable? We are convinced that it was, for both Powell
and Lofthouse were controlling law by the time of Hall's January 2007 trial,
and those cases should have made it clear that the Commonwealth had fallen
well short of its burden of proving a grave risk that Hall consciously
disregarded. Hall's murder conviction was, thus, manifestly unjust and
implicates her fundamental right to due process. Miller v. Commonwealth, 77
S .W.3d 566 (Ky. 2002) (noting that the Commonwealth's burden of proof is
grounded in the Due Process Clause) .
Hoping to avoid this result, the Commonwealth argues that even if Hall
could not be found aggravatedly wanton for acquiescing in Dylan's use of
methadone, she could still be found aggravatedly wanton for failing to take
more appropriate steps to save him once she realized that he was in acute
distress. Hall was charged, however, with causing Dylan's death "by permitting
him to obtain controlled substances and by permitting him to use controlled
substances," not by failing to rescue him. Obviously, the charge may not be
10 expanded on appeal, and in any event there was no proof that prompter
emergency treatment would have made a difference .
Because we are reversing Hall's murder conviction for lack ofevidence,
the reversal is in effect an acquittal on the murder charge . Under the state and
federal double jeopardy clauses, therefore, Hall may not be retried for murder.
McGinnis v. Wine, 959 S .W .2d 437 (Ky. 1998) . As noted, however, Hall was
also charged with the lesser-included offenses of second-degree manslaughter
and reckless homicide . Where a conviction is reversed for insufficient evidence,
the defendant may be retried on a lesser-included offense provided that at the
first trial there was an instruction on the lesser offense and further provided
that the evidence at the first trial was sufficient to support a conviction for that
offense . Combs v. Commonwealth , 198 S .W.3d 574 (Ky. 2006) ; Ex parte
Granger, 850 S .W .2d 513 (Tex . Crim. App . 1993) ; Beverly v . Jones , 854 F .2d
412 (11 th Cir. 1988) . In discussing the sufficiency of the evidence, we have
already determined that a reckless homicide instruction was justified, and so
Hall may be retried for that offense . It remains to consider whether she may
also be retried for second-degree manslaughter .
To support the second-degree manslaughter instruction, the evidence at
the first trial had to justify a finding that Hall wantonly caused Dylan's death .
KRS 507 .040 . A person acts wantonly with respect to a result or 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. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation .
KRS 501 .020(3) . As discussed above, although the Commonwealth failed to
present evidence tending to establish the magnitude of the risk posed by the
methadone Dylan ingested, a reasonable person would have recognized that
supplying a thirteen-year-old child with two Klonopin pills and a "bunch" of ten
milligram methadone pills posed a substantial and unjustifiable risk of death.
There was no evidence, however, either direct or circumstantial, that Hall
perceived that risk and consciously disregarded it. The evidence indicates only
that she perceived a risk that Dylan would not be awake in time for school in
the morning. Although her unreasonable failure to perceive the more serious
risk subjects Hall to a reckless homicide prosecution, it is not enough to
support a finding of second-degree manslaughter. This result may seem
insufficient given the tragic consequences of Hall's conduct, but as Lofthouse
and Powell make clear, it is the result dictated by the Penal Code's homicide
scheme . Accordingly, retrial of the alleged second-degree manslaughter offense
is also barred on remand.
II. Hall Did Not Establish That The Recording Of Her Interview With The Investigating Detective Should Have Been Redacted.
A. The Trial Court Did Not Err By Refusing To Redact Statements The Detective Attributed To Hall's Co-Defendants.
Having determined that Hall's murder conviction must be reversed and
the case remanded, we address Hall's other allegations of error only to the
extent that they raise issues apt to bear on a new trial. Hall contends that the
12 trial court erred by failing to require that certain portions of her interview with
Detective Gibbs be redacted. During the interview, the Detective challenged
Hall's statements several times by confronting her with contrary statements
Land and Watson had purportedly given him . For example, Hall initially told
the Detective that Land had given her one of his methadone pills. The
Detective then asked, "Are you sure? He told me you bought it off him." Hall
then corrected herself, admitted that she had purchased a pill for $6, and
claimed that she crushed the pill and intravenously ingested a portion of it.
Watson, she stated, had crushed another pill and. had divided it into the
"lines," one of which Dylan ingested . The Detective said, "According to Jim,
okay, according to Jim's statement that he gave me, you bought a methadone,
you all split it up, did four lines off of it. And that you all four did a line, Dylan
included ." Hall insisted that Watson had prepared the "lines" from a second
pill, and when she further insisted that she only reluctantly acquiesced in
Watson and Land's giving one of the "lines" to Dylan, the Detective responded
with, "But Jim says you gave him permission ." Hall contends that these and
several other references to statements Watson and Land purportedly made to
the Detective amounted to testimonial hearsay and so, because she did not
have an opportunity to cross-examine Watson and Land, that they violated her
confrontation right under the Sixth Amendment to the United States
Constitution as recently interpreted by the United States Supreme Court in Crawford v. Washington , 541. U.S . 36 (2004) and Davis v . Washington , 547
U.S . 813 (2006) . 2 We disagree.
As Hall correctly notes, in Crawford and Davis the Supreme Court held
that the Confrontation Clause bars the admission into evidence of testimonial
hearsay "unless [the declarant] was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination." Davis v. Washington , 547
U.S. at 813 (quoting from Crawford v. Washington, supra) . The bar applies
regardless of whether the evidence would otherwise be admissible pursuant to
an exception to the hearsay rule. In Davis, the Court noted that statements
made in the course of police interrogation
are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
547 U.S . at 813 . There is little doubt that the statements attributed to Land
and Watson satisfy that portion of the Crawford rule.
The Commonwealth contends, however, that the statements are not
hearsay, and thus do not implicate the Confrontation Clause, because they
were not introduced for their truth but rather to supply context for Hall's
statements . The Commonwealth notes that police interrogators frequently
confront suspects with supposed statements by victims, witnesses, or co-
2 Hall also cites Bruton v. United States, 391 U .S. 123 (1968), in support of her Confrontation Clause claim. Bruton , however, addresses the slightly, but significantly, different situation where a non-testifying co-defendant's extrajudicial statement is being introduced against the co-defendant, not, as here, against a defendant being tried separately . See Lee v. Illinois, 476 U.S . 530 (1986) . Crawford and Davis are the cases applicable to Hall's situation . 14 defendants, and that the point of these challenges is not the truth of the
supposed statement, which may indeed be a fabrication, but rather the
response elicited from the suspect. Because the Detective's purported quotes
were not .introduced for the truth of what Land and Watson purportedly said,
but rather to provide context for Hall's statements and admissions, the
Commonwealth maintains that permitting the jury to hear the unredacted
interview did not violate Crawford and Davis. We agree.
Although this is an issue of first impression in Kentucky, we recently
addressed a very similar issue in Turner v . Commonwealth, 248 S .W .3d 543
(Ky. 2008) . Turner involved a tape-recorded transaction between a confidential
informant and the defendant, an alleged seller of illegal drugs . In addition to
incriminating statements by the defendant, the recording included statements
by the informant, who did not appear at trial. The defendant argued that
because she was not able to cross-examine the informant, the admission of the
unredacted recording into evidence violated her confrontation rights under
Crawford and Davis . We held that to the extent the informant's recorded
statements provided context for those of the defendant, they served a valid,
non-hearsay purpose and so did not implicate or run afoul of the Confrontation
Clause.
We agree with the Commonwealth that in this case, too, the Detective's
portion of Hall's interrogation, including the few statements he attributed to
Land and Watson, provides necessary context for Hall's statements. The
Detective's references to things Land and Watson purportedly said was a valid
15 interrogation technique, cf. Lanham v. Commonwealth, 171 S .W .3d 14 (Ky.
2005) (noting that officers may confront a suspect with. their belief that he has
not been truthful), and the references were not used at trial for the truth of the
purported statements, but only to show why and how Hall's statement evolved
as it did . As in Turner, this was a valid, non-hearsay use of the purported
Land and Watson statements, and thus their inclusion in the evidence did not
constitute a Crawford error. This precise issue has not yet found its way into
many published opinions, but the little authority we have found from other
jurisdictions is in accord . State v. Roque, 141 P.3d 368 (Ariz . 2006) ; Woods v .
Wolfe, 2008 WL 2371401 (S .D . Ohio 2008) ; State v. Mannion, 637 A.2d 452
(Me . 1994) . See also Commonwealth v. Pelletiel:, 879 N .E.2d 125 (Mass . App .
2008) (noting the widespread agreement among both federal and state courts
that the non-hearsay use of testimonial statements does not violate Crawford) .
We caution, however, that trial courts must review the challenged interrogation
to ascertain that the statements from other witnesses are limited and were a
logical part of the interrogation. Police questioning cannot be used to "back
door" statements that are otherwise inadmissible . An interrogation laced with
constant references to other witnesses' statements would not be entitled to the
"appropriate interrogation technique" deference .
Hall did not request a jury admonition to the effect that the Land and
Watson statements were being presented not as proof that what the co-
defendants purportedly said was true, but just to explain the context of the
conversation between Detective Gibbs and Hall. We agree with the suggestions
16 in State v. Roque, supra, and Woods v . Wolfe , supra, however, that such an
admonition is appropriate, and if requested at retrial one should be provided .
Cf. Lanham v. Commonwealth, supra (recommending admonition in a similar
context) .
B . References In Hall's Statement To Her Prior Incarceration And To A Prior Bad Act Did Not Amount To Palpable Error.
Hall also contends that several references in her statement to the fact
that she had recently spent thirteen days in jail should have been redacted as
well as references to an episode two weeks prior to Dylan's death when he was
removed from school for being under the influence of alcohol. These
references, she maintains, constitute evidence of a prior crime and a prior bad
act which were not admissible under KRE 404(b) since they were not relevant
to any contested issue. With the exception of one of the jail references, which
was redacted, Hall concedes that this issue was not preserved by an
appropriate objection prior to or during trial. She nevertheless requests review
under the palpable error standard discussed above, i.e., a clear error on the
face of the record which probably bore on the result or which was so
fundamental as to threaten the defendant's right to due process . Martin v .
Commonwealth, supra . The alleged error here, however, does not meet this
standard . Even if the references should have been redacted (which we do not
decide) the unredacted statement did not deprive Hall of a fundamentally fair
trial, and there is no reasonable possibility, much less a probability, that
excluding the challenged references from Hall's statement would have altered
the result. Hall's statement would still have included, after all, her admission 17 that she permitted Dylan to ingest methadone and to have in his possession
additional methadone pills. We decline to address the unpreserved error,
therefore, but that does not preclude Hall from seeking redaction of the jail and
drinking episode references on remand .
III. The Trial Court Did Not Err By Refusing To Instruct On Criminal Facilitation .
Hall next contends that the trial court erred when it refused to instruct.
the jury on facilitation of the primary and lesser--included offenses. She notes
the general rule that the court should instruct on the whole law of the case,
Gabow v . Commonwealth, 34 S .W.3d 63 (Ky . 2000), and argues that a rational
juror could have believed that Land and Watson committed the principal
offense by supplying Dylan with the methadone intending or knowing that he
would use it, and that she, Hall, did no more than facilitate the principal
offense by "standing by and allowing it to happen ."
Criminal facilitation is defined in KRS 506.080:
A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he 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.
Facilitation is distinguished from complicity, its close cousin, by the different
mental states they involve. Complicity requires a mens rea as culpable as that
required for conviction of the principal offense, Tharp v . Commonwealth , 40
S.W .3d 356 (Ky. 2000) . Facilitation, on the other hand, may be found only
where the defendant, knowing that a crime was afoot or was intended, aided
18 the principal actor but nevertheless was "wholly indifferent to the actual
completion of the crime." Commonwealth v. Nourse, 177 S .W .3d 691, 700 (Ky.
2005) (citing Perdue v. Commonwealth, 916 S.W.2d 148 (Ky. 1995) ,(internal
quotation marks omitted) . A facilitation instruction is not appropriate unless
the evidence supports such a finding of knowing but disinterested aid. . Monroe
v. Commonwealth, 244 S .W.3d 69 (Ky. 2008) .
The trial court denied Hall's request for facilitation instructions because
it believed that her active participation in the drug abuse that went on at the
Hall/Watson residence precluded a finding that she was "wholly indifferent" to
whether Dylan became involved . We agree. Indeed, Hall admits in her
statement that she encouraged Dylan's participation not only by her example,
but by giving him a fifty-dollar bill to fashion into a "snorting" straw. This fact
belies her claim that she "stood by and did nothing" while Land and Watson
gave drugs to her son. No rational juror could have found otherwise. The trial
court, accordingly, did not err by refusing to instruct on facilitation .
IV. Alleged Errors Not Apt To Bear On A Retrial Are Not To Be Reviewed.
Finally, Hall contends that the trial court erred by refusing to strike a
juror for cause and by pressuring the jury to reach a sentencing decision.
Because these issues are not apt to recur at a retrial, we need not address
them here. Bell v. Commonwealth, 245 S .W.3d 738 (Ky. 2008) .
CONCLUSION
In sum, we agree with Hall that the Commonwealth failed to prove that
she wantonly murdered her son . The state proved that Hall participated in
19 supplying her son with methadone and that methadone killed him, but. i t failed
to prove the wanton murder elements that Hall was aware of but disregarded a
grave risk that the amount of methadone Dylan was taking was apt to prove
fatal . Absent this proof, Hall's murder conviction, must be reversed . On
remand, Hall may be retried for the lesser offense of reckless homicide . At a
retrial, Hall's interview with Detective Gibbs may be introduced without
redacting the statements the Detective attributed to Hall's co-defendants, but
upon Hall's request the jury should be admonished to consider those
statements not for their truth but only as part of the interview's context .
Accordingly, we reverse the March 9, 2007 Judgment of the Wolfe Circuit Court
and remand for further proceedings consistent with this opinion.
All sitting. Minton, C .J . ; Abramson, Cunningham, Noble, Schroder, and
Venters, JJ., concur. Scott, J., dissents .
SCOTT, JUSTICE, DISSENTING : I must respectfully dissent from my
esteemed colleagues' reversal of Appellant's wanton murder conviction as it
ignores the abundant circumstantial evidence in this disturbing case-a.
mother involving her 13-year-old son in a deadly drug binge . It is well settled
that circumstantial evidence alone is sufficient for a criminal conviction "as
long as the evidence taken as a whole shows that it was not clearly
unreasonable for the jury to find guilt." Lawson v. Commonwealth, 53 S .W .3d.
534, 548 (Ky. 2001) (emphasis added) ; see also Schrimsher v. Commonwealth,
190 S .W.3d. 318, 328 (Ky. 2006) ; Bray v. Commonwealth, 177 S.W.3d 741, 748
(Ky . 2005) . Plainly, a parent has an inescapable legal duty to protect their
20 child from physical injury . Lane v . Commonwealth, 956 S .W .2d 874, 875-76
(Ky. 1997) . Here, the jury found sufficient circumstantial evidence to find
Appellant guilty beyond a reasonable doubt of murder under circumstances
rising to the level of wantonness and in my opinion the verdict. was clearly not
unreasonable.
I. THE COMMONWEALTH'S PROOF SUPPORTED A CONVICTION OF WANTON MURDER
When a defendant participates in a felony, "dangerousness with respect
to the underlying felony can be derived either from the nature of the felony or
the method of its perpetration or attempted perpetration ." Graves v.
Commonwealth , 17 S .W .3d 858, 863 (Ky. 2000) . Thus, the circumstances
surrounding a felony crime can be so dangerous as to satisfy the element of
aggravated wantonness necessary for a conviction of wanton murder. Id. We
can even disregard the accused's lack of awareness of the grave risk and the
foreseeability of harm created by his conduct, as we did in drunk driving cases
like Hamilton v . Commonwealth, 560 S.W .2d 539 (Ky . 1977) .
As Professor Abramson observes with respect to this Court's holding in
Hamilton , wantonness "applied regardless of whether the defendant was either
too drunk to realize the seriousness of the risk of driving while intoxicated at
the time his conduct caused a result, or too absent-minded or feeble-minded.
The risk which the defendant consciously disregarded occurred when he
started to drive under the influence ." Leslie W. Abramson, 10 Kentucky
Practice, Substantive Criminal Law, § 3:5 (2nd ed. 2000) . Here, it started when
she took her minor son to the drug party. 21 It is common knowledge that a child's body is more physically vulnerable
to drugs than an adult's, evidenced generally by the heightened regulation of
controlled substances with regards to children (e .g. differing dosage
requirements for children and adults and restrictions or prohibitions of certain
powerful substances for children) . We also know that children lack the
emotional maturity and deliberative reasoning skills that are formed by the life
experience of adults . Children, therefore, are more likely to be be unaware of
or consciously disregard the potential dangers of drug abuse-e .g. the potential
deadliness posed by even a single drug, the deadly interactions between
multiple drugs, the potential allergic reactions, the effect of drugs on known or
unknown pre-existing medical conditions, etc. These considerations would be
racing through the mind of any reasonable parent who knows that his or her
child is in a situation involving drug abuse . This is why the Appellant's
dereliction of her legal duty to protect her child is so damning in this instance .
Not only did she disregard the risks that drugs pose to children, but she
approved of her son's use.
While it is true that Lofthouse v . Commonwealth, 13 S.W .3d 236 (Ky.
2000) requires the Commonwealth to adduce evidence tending to establish the
degree of risk a drug posed to the victim, such evidence was presented here.
Kentucky's Associate Chief Medical Examiner testified that an overdose of
Methadone is deadly and that "a person who takes too much of it . . . goes to
sleep, their breathing gets shallower, then they finally stop breathing and die ."
TR at 440 . Given the evidence, the jury obviously concluded that this wasn't
22 the Appellant's first go-round with drugs-that she knew of their potential
effect . Regardless, Lofthouse is distinguishable as involving an adult victim,
whereas, here, Dylan was an adolescent weighing 92 pounds . A juror could
reasonably infer from the evidence that Methadone was lethal to Dylan in even
smaller doses than would kill an adult.
Plainly, I believe that sufficient evidence was presented to show that
Appellant knowingly brought her 13-year-old son to a drug binge; that she gave
her minor son drugs ; that, instead of executing her legal duties as a parent,
she became intoxicated with Marijuana, Oxycontin, and Methadone ; that she
assented to and gave her minor son the instruments for ingesting crushed
Methadone with the adults ; that she did not remove additional Methadone from
her minor son's possession ; and that she went back to sleep when presented
with evidence that her minor son was in a drug induced sleep from which he
would not wake . When viewed within the context of parental common sense
concerning the vulnerability of children to drug abuse, there was sufficient
evidence of wantonness for the jury to reasonably find Appellant guilty of
wanton murder .
1, therefore, respectfully dissent, and would affirm this conviction . COUNSEL FOR APPELLANT:
Shannon Dupree Department of Public Advocacy Assistant Public Advocacy Suite 301, 100 Fair Oaks Lane Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway Attorney General
Heather M. Fryman Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204