Stieritz v. Commonwealth

671 S.W.3d 353

Martin Andrew STIERITZ, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0085-MR

Supreme Court of Kentucky.

June 15, 2023

COUNSEL FOR APPELLANT: Molly Mattingly, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Ken W. Riggs, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE NICKELL

A Kenton County jury convicted Martin Andrew Stieritz of complicity to attempted murder, complicity to second-degree assault, and tampering with physical evidence. He received a total sentence of twenty years’ imprisonment. Stieritz appeals to this Court as a matter of right.¹ He raises four properly preserved allegations of error: (1) he was entitled to a directed verdict on each of the charges for which he was convicted; (2) the trial court erred by denying his motion for mistrial based on unfair surprise; (3) he was entitled to a jury instruction on the lesser-included offense of menacing; and (4) the trial court erred by excluding mitigation evidence during the penalty phase. Discerning no reversible error, we affirm.

Caitlin McVey and Breandon Johnson stopped at a gas station in Covington, Kentucky. While inside the store, Johnson and another man were involved in a verbal alteration. The verbal altercation continued into the parking lot. As McVey drove away from the store with Johnson in the front passenger seat, she noticed they were being followed by another vehicle. The other vehicle continued to follow McVey despite her efforts to evade it. Eventually, she realized they were being fired upon. McVey heard several shots. She did not initially realize she had been shot, but then felt blood dripping down her arm. In the barrage of gunfire, multiple bullets struck the interior of McVey's vehicle and three of her tires were flattened. McVey was able to pull into the parking lot of a nearby restaurant where she called the police. When police arrived on the scene, Johnson was holding pressure on McVey's gunshot wound. McVey was transported to the hospital for treatment of her injuries. Johnson left with an officer to be interviewed at police headquarters. McVey was released from the hospital the same night and returned to police headquarters to be interviewed. Police eventually recovered nine spent bullet casings from the scene.

A few hours after the shooting, Covington Police Detectives Justin Bradbury and Austin Ross received an anonymous tip implicating Coleman Lane as the shooter. Stieritz was involved in a relationship with Destiny Lane, Coleman's sister.² Stieritz, Destiny, and another individual lived with Coleman in a residence Coleman had rented. During their investigation, the detectives obtained information that the gun used in the shooting was located in a storage garage owned by Stieritz's parents. During the search of the garage, Det. Bradbury went to a nearby residence owned by Stieritz's mother where he arrested Stieritz and Destiny. As he was being arrested, Stieritz spontaneously told Det. Bradbury, "[i]t's not here." Meanwhile, at the garage, Det. Ross discovered a black backpack with a handgun inside. Police technicians matched bullets found at the scene to bullets fired from the handgun. Det. Bradbury interviewed Stieritz at the police headquarters. At the time Stieritz was interviewed, Det. Bradbury knew the handgun had been retrieved by Det. Ross. Stieritz claimed Coleman had taken the gun after the shooting before eventually admitting the gun was located in his parents’ garage. Stieritz further told Det. Bradbury where his vehicle was located.

Stieritz admitted he was driving the vehicle that followed McVey and Johnson and that Coleman had fired upon them from his vehicle. According to her trial testimony, Destiny was seated in the front passenger seat while Coleman and Corey Richards were seated in the back. Destiny admitted she was under the influence of methamphetamine on the night of the shooting. Stieritz testified Richards was also using methamphetamine, but denied that he or Coleman had been using drugs.

Stieritz told Detective Bradbury he placed his handgun on the center console where Coleman could access it after Destiny was yelling at him to "[j]ust do it. Just let him [Coleman] do it." Destiny also admitted she told Stieritz to give Coleman the gun, adding she thereafter pulled her seat up, rolled the passenger seat window down, and disengaged the safety on the gun to allow Coleman to reach out and fire upon the vehicle occupied by McVey and Johnson.

A Kenton County grand jury charged Stieritz with one count of complicity to attempted murder; one count of complicity to first-degree assault; one count of second-degree assault; two counts of first-degree wanton endangerment; and one count of complicity to tampering with physical evidence.³ The Commonwealth subsequently dismissed the two counts of wanton endangerment.⁴

Following a jury trial, Stieritz was convicted of complicity to attempted murder, complicity to second-degree assault and tampering with physical evidence. He received a total sentence of twenty years’ imprisonment. This appeal followed.

I. TRIAL COURT PROPERLY DENIED DIRECTED VERDICTS ON ALL CHARGES

For his first contention of error⁵ , Stieritz argues he was entitled to a directed verdict of acquittal on each of the three charges for which he was convicted. We disagree.

A. DIRECTED VERDICT STANDARD

A directed verdict is "[a] ruling by a trial judge taking the case from the jury because the evidence will permit only one reasonable verdict." Verdict , Black's Law Dictionary (11th ed. 2019). CR ⁶ 50.01 authorizes the entry of a directed verdict as follows:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

CR 50.01 applies to criminal trials by operation of RCr ⁷ 13.04. Ray v. Commonwealth , 611 S.W.3d 250, 258 n.24 (Ky. 2020).

On appellate review, a trial court's denial of a defendant's motion for directed verdict should not be reversed unless the appellate court determines "it would be clearly unreasonable for a jury to find guilt." Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky. 1991). When confronted with a motion for directed verdict, the trial court must assume the truth of the Commonwealth's evidence and "draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Id. Questions regarding the weight of the evidence and the credibility of witnesses are reserved to the sole province of the jury. Id.

A conviction must be based on "evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Id. at 187-88. The Commonwealth is not required to "rule out every hypothesis except guilt beyond a reasonable doubt." Rogers v. Commonwealth , 315 S.W.3d 303, 311 (Ky. 2010) (quoting Jackson v. Virginia , 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). Moreover, "[i]t is also axiomatic that the jury is not required to believe self-serving statements from the defendant or any of his witnesses." Pollini v. Commonwealth , 172 S.W.3d 418, 426 (Ky. 2005). This Court has further recognized, "jury instruction issues and directed verdict issues are distinct for purposes of appeal." Sutton v. Commonwealth , 627 S.W.3d 836, 847 (Ky. 2021). Indeed, "[t]he directed-verdict question is not controlled by the law as described in the jury instructions, but by the statutes creating the offense." Smith v. Commonwealth , 636 S.W.3d 421, 434 (Ky. 2021) (citation omitted). Essentially, "the question on a directed verdict motion is not necessarily what evidence supporting the defendant was solicited, but rather what evidence the Commonwealth produced in support of its burden of proof." Sutton , 627 S.W.3d at 848.

B. STIERITZ WAS NOT ENTITLED TO DIRECTED VERDICT ON COMPLICITY TO ATTEMPTED MURDER

Regarding the conviction for complicity to attempted murder, Stieritz argues there was insufficient evidence either he or Coleman possessed the specific intent to kill Johnson. We disagree.

A finding of guilt by complicity requires: "(1) proof of commission of an offense by another person and (2) proof of the defendant's participation in commission of that offense." Parks v. Commonwealth , 192 S.W.3d 318, 327 (Ky. 2006) (quoting Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 3–3(d)(2), at 117 (1998)). An accomplice "occupies the same status as one being guilty of the principal offense." Id. (quoting Wilson v. Commonwealth , 601 S.W.2d 280, 286 (Ky. 1980) ). A defendant may be convicted of guilt by complicity if the jury finds "beyond a reasonable doubt that the offense was, in fact, committed by the person being aided or abetted by the defendant." Id.

This Court has recognized two distinct theories of accomplice liability under KRS 502.020 :

The primary distinction between these two statutory theories of accomplice liability is that a person can be guilty of "complicity to the act" under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of "complicity to the result" under KRS 502.020(2) without the intent that the principal's act cause the criminal result, but with a state of mind which equates with "the kind of culpability with respect to the result that is sufficient for the commission of the offense," whether intent, recklessness, wantonness, or aggravated wantonness

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