Robertson v. Commonwealth

82 S.W.3d 832, 2002 Ky. LEXIS 168, 2002 WL 1940526
CourtKentucky Supreme Court
DecidedAugust 22, 2002
DocketNo. 2000-SC-0468-DG
StatusPublished
Cited by12 cases

This text of 82 S.W.3d 832 (Robertson 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
Robertson v. Commonwealth, 82 S.W.3d 832, 2002 Ky. LEXIS 168, 2002 WL 1940526 (Ky. 2002).

Opinions

COOPER, Justice.

Michael Partin, a police officer employed by the city of Covington, Kentucky, was killed when he fell through an opening between the roadway and the walkway of the Clay Wade Bailey Bridge and into the Ohio River while in foot pursuit of Appellant Shawnta Robertson. Following a trial by jury in the Kenton Circuit Court, Appellant was convicted of manslaughter in the second degree for wantonly causing Partin’s death, KRS 507.040(1), and was sentenced to imprisonment for six years. The Court of Appeals affirmed, and we granted discretionary review to further consider the circumstances under which criminal liability can be imposed upon a defendant for injuries or death directly caused by the volitional act of another.

At about 2:00 a.m. on January 4, 1998, Officer Brian Kane of the Kenton County Police Department attempted to arrest Appellant in Covington for possession of marijuana. Appellant broke free of Kane’s grasp and began running north on Fourth Street toward the Clay Wade Bailey Bridge which spans the Ohio River between Covington and Cincinnati, Ohio. Kane radioed for assistance and pursued Appellant on foot “at a sprint.” When Appellant reached the bridge, he vaulted over the concrete barrier between the roadway and the walkway and began running north on the walkway toward Cincinnati. Kane, who, at that point, was running on top of the concrete barrier jumped down to the walkway and continued his pursuit.

Meanwhile, Partin and two other Cov-ington police officers, Steve Sweeney and Cody Stanley, responded to Kane’s request for assistance and arrived at the bridge almost simultaneously in three separate vehicles. What was later determined to be Partin’s police cruiser proceeded past the point where Appellant was running and stopped. Appellant then also stopped, reversed course, and began running back toward Kane. Kane ordered Appellant to “get down,” whereupon, Appellant raised both hands above his head and fell to his knees in apparent submission. Kane got on top of Appellant and pulled his hands behind his back so as to apply handcuffs. While doing so, Kane thought he saw a shadowy movement or a flash in his peripheral vision. He then heard a voice say that “somebody’s off the bridge.”

Partin’s vehicle was the first of the three police cruisers to reach the bridge. He stopped in the right northbound lane just beyond where Appellant was running on the walkway. Stanley stopped his vehicle directly behind Partin’s vehicle, and Sweeney stopped in the left northbound lane, also behind Partin’s vehicle. Sweeney and Stanley testified that they did not see either Appellant or Kane on the walkway and stopped only because Partin had done so. Both saw Partin exit his vehicle, proceed to the concrete barrier, place his left [835]*835hand on the barrier, then vault over the barrier “as if he had done it a million times before,” and disappear. The concrete barrier was thirty-two inches high. The railing of the walkway was forty-three inches high. There was a forty-one-inch-wide open space between the concrete barrier and the walkway railing. Partin fell through the open space into the river ninety-four feet below. His body was recovered four months later.

I. CRIMINAL CAUSATION.

No one will ever know why Partin fell through the opening between the concrete barrier and the pedestrian walkway. Perhaps, he did not realize the opening was there. Perhaps, he knew it was there and miscalculated his vault. Either way, however, his death resulted from his own volitional act and not from any force employed against him by Appellant. Whether Appellant’s act of resisting arrest by unlawful flight from apprehension was a legal cause of Partin’s death requires application of the provisions of KRS 501.020(3) (definition of “wantonly”), KRS 501.020(4) (definition of “recklessly”), and KRS 501.060 (“causal relationships”).

KRS 501.020(3) defines “wantonly” as follows:

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. 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_(Emphasis added.)

KRS 501.020(4) defines “recklessly” as follows:

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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. (Emphasis added.)

Thus, wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same situation would not have disregarded, and recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived.

KRS 501.060 provides in pertinent part:

(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.
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(3) When wantonly or recklessly causing a particular result is an element of the offense, the element is not 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 tmless:
(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(b) The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered sub[836]*836stantially more probable by his conduct.
(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.

(Emphasis added.)

Obviously, Appellant’s unlawful act of resisting arrest by fleeing from apprehension was a “but for” cause of Partin’s fatal attempt to pursue him by vaulting from the roadway of the bridge to the walkway.

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Cite This Page — Counsel Stack

Bluebook (online)
82 S.W.3d 832, 2002 Ky. LEXIS 168, 2002 WL 1940526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-commonwealth-ky-2002.