Biederman v. Commonwealth

434 S.W.3d 40

Thomas BIEDERMAN, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2013–SC–000034–MR.

Supreme Court of Kentucky.

June 19, 2014.

Erin Hoffman Yang, Assistant Public Advocate, for Appellant.

Jack Conway, Attorney General, Gregory C. Fuchs, Assistant Attorney General, for Appellee.

Opinion of the Court by Justice KELLER.

Thomas Biederman (Biederman) was convicted by the Boyd Circuit Court of the use of a weapon of mass destruction in the second degree and attempted murder. He was sentenced to forty (40) years' imprisonment. Biederman appeals his sentence as a matter of right under Ky. Const. § 110(2)(b).

Before this Court, Biederman raises four issues: (1) that his conviction violates double jeopardy; (2) that he was wrongly sentenced as a violent offender because the jury did not find serious physical injury to the victim; (3) that it was structural error to not allow the jurors to use their notes during deliberations; and (4) that he was wrongly denied his motion for directed verdict. Having reviewed the record and the parties' arguments, we affirm.

I. FACTS.

On July 28, 2011, Janie Riggs's (Riggs ¹) car exploded while parked in the garage outside her place of employment when a pipe bomb went off underneath her seat. Riggs testified that she heard an explosion and initially thought the airbag had malfunctioned. As a result of the explosion, Riggs suffered second and third degree burns, scarring on her arms and around her feet, hearing loss, post-traumatic stress disorder, and a possible foot fracture causing numbness throughout her leg.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigated the case. ATF agent, Ron Sabotchick, testified that the ATF seized from Biederman his family computer, BBs, jumper leads, telephone wires, a Radio Shack altimeter, one of many cans of Polyvinyl chloride (PVC) cement, wire cutting tools, electrical connectors, and Radio Shack receipts. The forensic chemist for the ATF, Michelle Evans, testified that the items found at Biederman's home could be used to make a pipe bomb; however, she could not link the items found at the home to the components used in the pipe bomb that injured Riggs. Additionally, ATF agent, Gary Smith testified that the bomb that exploded in Riggs's vehicle was placed in the vehicle somewhere other than the garage where it exploded; and that the bomb was secured to the floorboard of the vehicle so as not to roll around while the vehicle was being driven.

The Ashland Police Department (ADP) also investigated. Detective Gavin Patrick testified that the ATF seized Biederman's family computer, a search of which revealed several internet searches related to the construction of pipe bombs had been made between late March, 2011 through July 2011. The Commonwealth also presentedevidence of the strained marriage between Biederman and Riggs, ridden with financial problems, and that the two possessed a $300,000 life insurance policy.

In the Commonwealth's case, the Commonwealth played video of Biederman talking to two agents. In that video, Biederman told the agents that various people, his attorney, disgruntled neighbors, Jamaican telephone scammers, or church parishioners, could have wanted to kill Riggs. Biederman also told investigators that, as an appraiser in an alleged real estate class action lawsuit, he was going to receive $180,000,000 as a part of his fees for the case; therefore, he had no reason to be concerned with the $300,000 life insurance policy. Ultimately, based upon the aforementioned facts, Biederman was charged and convicted of the use of a weapon of mass destruction in the second degree and attempted murder. We set forth additional facts as necessary in the analysis of Biederman's appeal.

II. ANALYSIS.

A. Biederman's Conviction did not Violate Double Jeopardy.

Because the basis of the attempted murder charge was the placing of a bomb in Riggs's car, Biederman argues that his convictions of use of a weapon of mass destruction and attempted murder violate double jeopardy. The Commonwealth argues that attempted murder requires several elements that are distinct from the use of a weapon of mass destruction and thus there was no double jeopardy violation. We agree with the Commonwealth.

The test to determine if double jeopardy is violated is whether each statute requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We have previously held that § 13 of the Kentucky Constitution mirrors the Fifth Amendment protections of the United States Constitution and therefore federal double jeopardy cases are germane to double jeopardy cases in Kentucky. Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky.1996). Under the Blockburger test, we focus on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence presented at trial. Mack v. Commonwealth, 136 S.W.3d 434, 438 (Ky.2004) citing Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

Biederman was charged with the use of a weapon of mass destruction in the second degree and attempted murder. In pertinent part:

A person is guilty of use of a weapon of mass destruction in the second degree when intentionally, without lawful authority, he or she: (a) [p]laces a weapon of mass destruction at any location in the Commonwealth and, as a result, any person other than the defendant receives physical injury. KRS 527.205.

Attempted murder requires a person acting with the kind of culpability otherwise required for murder, under the circumstances as he believes them to be, to take a substantial step in a course of conduct planned to culminate in the death of another. KRS 506.010; KRS 507.020.

Each statute requires proof of an additional fact which the other does not. The use of a weapon of mass destruction in the second degree, unlike attempted murder, does not require intent to cause death or even the intent to cause injury. The use of a weapon of mass destruction in the second degree requires a person to intentionally place a weapon of mass destruction in the Commonwealth, which attempted murder does not. Attempted murder requires intent to cause death, which the use of a weapon of mass destruction does not. Therefore, Biederman's conviction did not violate double jeopardy under § 13 of the Kentucky Constitution or the Fifth Amendment of the United States Constitution, and we affirm.

Biederman also argues that his convictions of attempted murder and use of a weapon of mass destruction violate KRS 505.020(1)(b) and (c). KRS 505.020(1)(b) prohibits multiple convictions arising from a single course of conduct when “inconsistent findings of fact are required to establish the commission of the offenses.” KRS 505.020(1)(c) prohibits multiple convictions arising from a single course of conduct when “[t]he offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.”

Biederman argues that KRS 505.020(1)(b) was violated because the instructions required the jury to find that he intended to kill Riggs in order to convict him of attempted murder and that he intended to physically injure her in order to convict him of use of a weapon of mass destruction. However, much like the above analysis under Blockburger, inconsistent findings of fact were not required to establish the commission of both offenses. The jury was required to find Biederman intentionally placed a weapon of mass destruction within the Commonwealth and, as a result, Riggs received physical injury. Wholly disconnected from that, the jury was also required to find Biederman intentionally attempted to kill Riggs by placing a weapon of mass destruction within her vehicle. A finding of the intent to place a weapon of mass destruction is not inconsistent with a finding that Biederman did so with the intent to kill. Thus, neither of these findings are inconsistent in violation of KRS 502.020(1)(b).

Finally, Biederman argues that KRS 502.020(1)(c) was violated because the use of a weapon of mass destruction and attempted murder arose from a single course of conduct uninterrupted by legal process. However, Biederman is wrong in his assertion. The use of a weapon of mass destruction and attempted murder prohibit separate, individual acts and not a course of conduct. Therefore, the Commonwealth may prosecute the two separate offenses even though they arose from the same course of conduct. Additionally, KRS 502.020(1)(c) prohibits multiple convictions when “ the offense is designed to prohibit a continuing course of conduct....” (emphasis added). Thus, KRS 502.020(1)(c) is designed to prevent multiple convictions of the same offense that arise from the same course of conduct, but only when the offense is designed to prohibit a continuing course of conduct. KRS 502.020(1)(c) is not designed to prevent multiple convictions of different offenses arising from a single course of conduct. See McKinney v. Commonwealth, 60 S.W.3d 499, 510 (Ky.2001) (allowing multiple prosecutions for arson, abuse of a corpse, and tampering with physical evidence based upon a single act of setting fire to a building); and Alexander v. Commonwealth, 766 S.W.2d 631, 632 (Ky.1988) (permitting multiple prosecutions for murder and wanton endangerment based upon a single shot fired into a crowded room). Because neither the attempted murder statute nor the use of weapons of mass destruction statute prohibit a continuing course of conduct, we agree with the Commonwealth that KRS 502.020(1)(c) does not apply. Therefore, we affirm Biederman's convictions of both crimes.

B. The Trial Court did not Wrongly Sentence Biederman as a Violent Offender.

The jury convicted Biederman of both counts, finding him guilty of the use of a weapon...