Mulliran v. Commonwealth

341 S.W.3d 99
CourtKentucky Supreme Court
DecidedJune 16, 2011
DocketNo. 2009-SC-000519-MR
StatusPublished
Cited by1 cases

This text of 341 S.W.3d 99 (Mulliran 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
Mulliran v. Commonwealth, 341 S.W.3d 99 (Ky. 2011).

Opinions

Opinion of the Court by

Justice CUNNINGHAM.

Appellant, Jason Lee Mullikan, lived with his parents in Maysville, Kentucky. Soon after Kent Fields moved in next door, Mullikan became strangely paranoid that Fields was trying to harm him. He believed that Fields had attempted to ram his vehicle and also suspected that Fields had killed his eat. Mullikan was further convinced that Fields was breaking into his home and trying to poison his water. On September 18, 2008, a state trooper came to Mullikan’s home to collect a bottle of water which Mullikan claimed tasted funny.

On that same day, Mullikan saw Fields walking down the street. He approached Fields from behind and attacked him. Apparently, Mullikan’s purpose in attacking Fields was to deter him from continuing with what Mullikan believed was a design to harm him. An individual by the name of Frank Fryman helped to break up the fight after Mullikan had gotten the worse of it. The intervention of Fryman fed [102]*102Mullikan’s paranoia to the point that he also believed Fryman was conspiring with Fields to do him harm. Mullikan then ran into Fields’s home with Fields in hot pursuit. Inside the house, Mullikan grabbed a Samurai sword and threatened Fields by saying, “I’m going to kill you.” He exited the house, swinging the sword at both Fields and Fryman. When Mullikan heard sirens and the police approaching, he ran to his home where the police arrested him. In the course of the arrest, Mullikan threatened and made obscene gestures toward the police. He also spat on the face of one of the officers. An EMS on the scene cleaned the officer’s face, and other law enforcement personnel sprayed him with a decontaminant spray.

Mullikan was indicted and convicted of two counts of first-degree wanton endangerment for chasing Fields and Fryman with the Samurai sword; one count of second-degree burglary for his unauthorized entry into Fields’s home; one count of third-degree assault for spitting on the police officer; and two counts of third-degree terroristic threatening for allegedly threatening to kill Fields and Fryman. In accordance with the jury’s recommenda,tion, the trial court sentenced Mullikan to five years for each count of wanton endangerment, five years for third-degree assault, ten years for second-degree burglary, and twelve months for each count of terroristic threatening, for a total term of imprisonment for twenty years.

Mullikan raises nine grounds on this appeal. We find that only one — which will be addressed last — has merit.

I. ANALYSIS

1. There was no Double Jeopardy Violation in Mullikan’s Convictions for First-Degree Wanton Endangerment and Third-Degree Terroristic Threatening of Same Victims.

This issue is unpreserved, but we have long held that “double jeopardy questions may be reviewed on appeal, even if they were not presented to the trial court.” Caroline v. Commonwealth, 283 S.W.3d 641, 652 (Ky.2009), quoting, e.g., Terry v. Commonwealth, 253 S.W.3d 466, 470 (Ky. 2008).

As Mullikan points out, prior Kentucky double jeopardy precedent holds that a defendant cannot be properly convicted of both wanton endangerment and terroristic threatening of the same victim because “the terroristic threat is included in the wanton endangerment.” Watson v. Commonwealth, 579 S.W.2d 103, 104 (Ky. 1979), overruled, on other grounds by Commonwealth v. Clemons, 734 S.W.2d 459, 461 (Ky.1987). See also Commonwealth v. Black, 907 S.W.2d 762, 763 (Ky.1995). Such precedent pre-dates our landmark decision in Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996), in which we abandoned the “single impulse” or “same conduct test” in favor of deciding questions of whether convictions on two offenses were prohibited under the double jeopardy clause using the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also Burge, 947 S.W.2d at 809-11.

Under a proper Blockburger analysis, “Double jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute ‘requires proof of an additional fact which the other does not.’ ” Id. at 809, quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180. Properly applying the Blockburger analysis, we are forced to overrule our precedent holding that convictions on both wanton endangerment and terroristic threatening of the same victim are barred under the double jeopardy clause.

[103]*103The elements of first-degree wanton endangerment and third-degree terroristic threatening are quite different. First-degree wanton endangerment requires that “under circumstances manifesting extreme indifference to the value of human life, [the defendant] wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.” KRS 508.060(1). Third-degree terroristic threatening, on the other hand, does not require that the defendant engage in conduct creating such serious risks to another person “under circumstances manifesting extreme indifference to the value of human life.” On the contrary, it simply requires that the defendant threaten to commit any crime likely to cause death, serious physical injury or substantial property damage. KRS 508.080(1).

Therefore, terroristic threatening requires a threat to commit a crime, but wanton endangerment does not require such a threat. And wanton endangerment requires actual conduct placing others at serious risk, but terroristic threatening does not require such actual conduct or such actual serious risk. Consequently, convictions on both offenses do not violate KRS 505.020 because terroristic threatening is not “included within” wanton endangerment since terroristic threatening is not “established by proof of the same or less than all the facts required to establish the commission of’ wanton endangerment.

Because each conviction requires proof of a fact that the other conviction does not, Mullikan’s convictions for both wanton endangerment and terroristic threatening of Fields and Fryman do not constitute a double jeopardy violation under a proper Blockburger analysis.

2. Trial Court Did Not Abuse Discretion in Denying Mullikan’s Request for DNA Testing or Fingerprinting of Water Bottle.

Before trial, Mullikan moved the trial court to require DNA and fingerprint testing on the water bottle that police had collected from him. The trial court denied this motion, partly because of the collateral nature of the inquiry and partly because of concerns that such testing could not be completed by the time of trial.

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Related

Mullikan v. Com.
341 S.W.3d 99 (Kentucky Supreme Court, 2011)

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341 S.W.3d 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulliran-v-commonwealth-ky-2011.