Staples v. Commonwealth

454 S.W.3d 803

Nickolas STAPLES, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000788–MR.

Supreme Court of Kentucky.

April 17, 2014.

Rehearing Denied Oct. 23, 2014.

Brandon Neil Jewell, Assistant Public Advocate, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General, Counsel for Appellee.

OPINION OF THE COURT BY JUSTICE ABRAMSON

ABRAMSON, Judge.

Nickolas Staples appeals as of right from a Judgment of the Butler Circuit Court convicting him of first-degree manslaughter (Kentucky Revised Statute (KRS) 507.030 ) and first-degree criminal abuse (KRS 508.100 ) and sentencing him as a second-degree persistent felon (KRS 532.080 ) to a maximum term of twenty-five years in prison. The Commonwealth accused Staples of having caused, either alone or in conjunction with his girlfriend, Brittany Garcia, serious physical injury to and ultimately the death of Garcia's five-month old daughter, Angel Tucker. Garcia was similarly charged, and, following their joint trial, was convicted along with Staples of first-degree manslaughter and first-degree abuse. Because Staples, who lived with Garcia and Angel and who regularly cared for Angel, was not the child's legal custodian and had not attained in loco parentis status, he insists that he had no legal duty to intervene and prevent Garcia from either seriously injuring or killing her child. If this is correct, any criminal abuse or complicity to manslaughter conviction based on a legal duty owed by Staples would be unsustainable as a matter of law. However, as explained in detail below, we conclude that the Kentucky General Assembly deliberately chose the words “actual custody” for the criminal abuse statutes, and that actual custodians include those adults, like Staples, who co-habit with another adult and that person's minor child and who share substantial responsibilities with the parent for the child's day-to-day necessities such as food, shelter, and care. While not legal custody, this type of relationship constitutes actual custody and gives rise to a duty to protect the child under the Kentucky Penal Code. Moreover, as the traditional household of two biological parents residing with their minor children becomes increasingly less common, imposition of criminal responsibility for breach of a duty of care by an “actual custodian” is not only entirely logical but the plain intent of our legislators.

Turning to Staples's contentions on appeal, he maintains that there was insufficient evidence of his guilt to justify the submission of either charge to the jury. He also contends that (1) improper jury instructions, (2) improper remarks by the Commonwealth's Attorney during closing argument, (3) the admission into evidence of autopsy photographs, (4) the admission into evidence of statements Garcia made to police investigators, and (5) a misallocation of peremptory juror strikes all rendered his trial unfair and necessitate a retrial.

Convinced that nothing to which Staples objected at trial or raises on appeal, with one exception, amounted to reversible error, we affirm that portion of the Judgment of the Butler Circuit Court convicting Staples of first-degree criminal abuse and sentencing him as a second-degree persistent felony offender. However, we conclude that an unpreserved error in the first-degree manslaughter complicity instruction misstated the required mental state, and being both palpable and manifestly unjust, necessitates a reversal of Staples's manslaughter conviction and a remand for further proceedings on that charge.

RELEVANT FACTS

The Commonwealth's proof tended to show that in August 2009, Garcia moved with her two-month-old daughter, Angel, into the Morgantown apartment her new boyfriend, Staples, shared with his mother. Near the end of September 2009, the mother, Karen Staples, moved to a new residence, and Staples and Garcia moved to a new, smaller apartment of their own.

About a month later, on November 6, 2009, Garcia's brother's girlfriend, Angela Briana, was helping care for Angel. Briana testified that at one point she moved to pick up Angel, because she was crying and seemed in pain, but Staples stopped her, explaining that he and Garcia were trying to wean the four-month old child from needing to be held so much. Later, after Staples had left her alone with Angel, Briana lifted her clothes to change her and found what she regarded as serious bruising over much of the child's left ribs. Briana testified that when she asked Garcia what had happened Garcia first claimed not to know, but then claimed that a couple of days before she, while carrying Angel, had fallen down some stairs. Concerned, Briana and her boyfriend (Garcia's brother) contacted Angel's father, James Tucker.

Tucker promptly took Garcia and Angel to the Bowling Green Medical Center. There, Angel was examined and x-rayed, but because the bruising on her chest wall and back appeared to be consistent with Garcia's account of a fall down the stairs, the examiner did not oppose Garcia's taking Angel home. Tucker returned Garcia and Angel to Staples's apartment, and from then until Thanksgiving Staples and Garcia continued to live as a couple with Staples providing, according to his own estimate, forty percent of Angel's care.

Tucker testified that Garcia and Angel spent the Thanksgiving holiday, from the day before Thanksgiving until the day after, with him. During that time, he said, Garcia informed him that she had not really fallen down the stairs with Angel and that she did not know how Angel had been injured. The day after Thanksgiving, Garcia returned to Staples's apartment, and the day after that Staples's mother picked up Angel from Tucker's sister's residence, where Garcia had left her, and returned her to Garcia and Staples.

Two days later, on November 30, 2009, Garcia took Angel to the Health Department for an immunization. The nurse who gave the shot testified that she did not examine Angel, but that nothing she observed suggested anything amiss. Karen Staples testified that she spent that evening with her son and Garcia at their apartment. She left at about 7:00 or 8:00 p.m., at which time, she said, Angel appeared to be fine.

Shortly after 6:00 the next morning, on December 1, 2009, paramedics were summoned to the couple's apartment and there found Angel in a state of cardiac and pulmonary arrest. She was taken initially to the Bowling Green Medical Center, where emergency room personnel were able to restore vital signs. She was then transferred to the Vanderbilt University Children's Hospital in Nashville. Three days later she was removed from life-support and pronounced dead.

The post-mortem examination, which included x-rays made on December 1, revealed that during the last month or two of her life Angel had suffered numerous broken ribs and a broken clavicle. The medical examiner testified that because the broken bones were at different stages of healing, not all of the injuries had happened at the same time. The rib fractures, according to the examiner, appeared on both the November 6 x-rays taken at the Bowling Green Medical Center and the December 1 x-rays, but the clavicle fracture, which also showed signs of healing, appeared only on the latter, and so must have occurred after November 6 and before December 1.

The examination also revealed a bruise on the side of the child's head. Beneath the bruise there had been massive bleeding into and around the brain and around the top of the spinal cord. The medical examiner testified that a consequent lack of oxygen to the brain was the ultimate cause of death, and that the head injury, which would immediately have been symptomatic and probably debilitating, had been caused by severe blunt force trauma, such as violent shaking or someone's slamming the child's head against the floor or a wall.

The investigating detective testified that he conducted a series of interviews with Staples and Garcia soon after Angel was taken to the hospital, and that they gave changing and initially inconsistent accounts regarding how Angel's ribs were injured—from not knowing, to a fall down the stairs (Garcia), or a fall up the stairs (Staples). After the initial interviews and after the couple had had a chance to confer, Garcia's account changed to match that of Staples.

A Butler County grand jury indicted Staples in November 2010, on charges of murder, either as a principal or as an accomplice, and of first-degree criminal abuse. Following his arrest on those charges, Staples was lodged in the Butler County Jail. One of his cellmates at the jail testified that Staples confessed to him that he had hated Angel as the child of another man and that he had been rough with her and had squeezed her around her chest. According to the cellmate, when Staples learned that he, the cellmate, had once been employed as a confidential informant in another county, he warned him not to reveal what he had confessed, since, having one death already on his conscience, he did not want to have another.

The Commonwealth also presented evidence that while incarcerated at the jail Staples had had a number of (recorded) telephone conversations with his mother. The gist of more than one of those calls was Staples's request that his mother visit Garcia and tell her “to keep her mouth shut.”

Neither Garcia nor Staples testified at trial, but Staples presented testimony by four other cellmates to the effect that the alleged confession was unlikely given the crowded conditions in the cell where it allegedly took place and the reputation of the Commonwealth's witness as an informant. Otherwise, through cross-examination and through argument, Staples emphasized the circumstantial nature of the Commonwealth's case and urged that the circumstances did not add up to proof that he was guilty of anything. At the conclusion of the four-day trial, the jury acquitted both Staples and Garcia of murder, but, as noted, found them...