Thomas v. Com.

170 S.W.3d 343

Mark Leo THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0989-MR.

Supreme Court of Kentucky.

June 16, 2005.

Rehearing Denied September 22, 2005.

COPYRIGHT MATERIAL OMITTED

Michael L. Goodwin, Goodwin & Lasch, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

During the early morning hours of October 9, 2002, Appellant, Mark Leo Thomas, and the two complaining witnesses, Robert Beckwith and Tilden Linker, were involved in an altercation outside the R Place Pub, a bar in Louisville, Kentucky. During the altercation, Appellant drew a handgun and shot Beckwith once in the leg and Linker three times in the hip. Appellant was also injured, suffering fractures of both cheekbones, his jaw, and his left and right maxillary sinuses, as well as injuries to several teeth, which required extraction. Appellant claimed Beckwith and Linker attacked him and that he shot them in self-protection. Beckwith and Linker claimed Appellant shot them without provocation and that other patrons of the bar primarily inflicted Appellant's injuries while subduing and disarming him after the shootings. The only eyewitness to any of this activity was Jeremy Walls, who came to the bar looking for a friend just as Appellant, Beckwith, and Linker were leaving. Walls testified that as he was entering the bar, he saw either Beckwith or Linker shove Appellant; and that as he was leaving the bar less than a minute later, he saw Appellant shoot Beckwith and Linker.

A Jefferson Circuit Court jury convicted Appellant of intentional assault in the first degree, KRS 508.010(1)(a), a Class B felony, for shooting Beckwith, and of wanton assault in the second degree, KRS 508.020(1)(c), a Class C felony, for shooting Linker.¹ He received consecutive sentences of seventeen and seven years respectively, for a total of twenty-four years. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting eight claims of reversible error, viz: (1) failure to instruct the jury on assault under extreme emotional disturbance, KRS 508.040, a Class D felony, as a lesser included offense of both charges; (2) admission of prior consistent statements of both Beckwith and Linker; (3) admission of opinion evidence that alcohol in the blood of a person with a history of alcohol abuse metabolizes at a faster rate than that of other persons who have consumed the same amount of alcohol; (4) admission of a statement made by Appellant to the police without Miranda warnings; (5) admission of evidence of Appellant's prior use of controlled substances; (6) admission of improper rebuttal evidence; (7) prosecutorial misconduct during Appellant's testimony; and (8) misstatements by the prosecutor during penalty-phase argument. We now reverse and remand this case for a new trial because of the failure to instruct the jury on assault under extreme emotional disturbance, the admission of the prior consistent statements of Beckwith and Linker, and the admission of the opinion premised upon an assumption of a history of alcohol abuse. We will also briefly address Appellant's other claims of error, none of which would warrant reversal.

I. ASSAULT UNDER EXTREME EMOTIONAL DISTURBANCE.

KRS 508.040 provides:

(1) In any prosecution under KRS 508.010, 508.020 or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.

(2) An assault committed under the influence of extreme emotional disturbance is:

(a) A Class D felony when it would constitute an assault in the first degree or an assault in the second degree if not committed under the influence of an extreme emotional disturbance;...

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(Emphasis added.) KRS 507.020(1)(a) provides, inter alia:

[A] person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.

(Emphasis added.) In McClellan v. Commonwealth, 715 S.W.2d 464 (Ky.1986), we adopted the following definition of extreme emotional disturbance ("EED"):

Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as [the] defendant believed them to be.

Id. at 468-69. Subsequent case law has held that the EED must be "sudden and uninterrupted," Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.1991), though the provocation, or "triggering event," need not occur concurrently with the offense. Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky.2000); Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky.1999). The provocation need not emanate from the victim, Fields v. Commonwealth, 44 S.W.3d 355, 358 (Ky.2001), and could be the "cumulative impact of a series of related events." Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.2003); Fields, 44 S.W.3d at 359.

Because the issue is whether there was evidence to warrant an instruction on assault under extreme emotional disturbance, we must consider the evidence in the light most favorable to Appellant. Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky.1965) (on claim of error in failing to give requested jury instruction, appellate court reviews evidence in light most favorable to party requesting instruction). See also United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir.1979).

Appellant is a resident of Florida but a native of Louisville. He was previously mugged in the parking lot of a Marriott Hotel in Tampa, Florida, resulting in a serious injury to his left eye that required surgery and implantation of metal plates. On October 8, 2002, Appellant arrived in Louisville to spend time with his sister, whose husband was dying of cancer. He intended to stay at a local hotel. He had dinner with his father, then hired a taxi to drive him to the R Place Pub, where he knew the bartender and hoped to meet some former acquaintances. At the bartender's suggestion, Appellant stored his luggage behind a closed bar on the patio. He removed a holstered handgun from the luggage and placed it between the small of his back and the waistband of his pants. He then, indeed, met and socialized with some old friends. Beckwith and Linker were seated at another table with Beckwith's domestic companion, Sara Bishop. Appellant caught Bishop's eye and smiled at her. Bishop smiled back. Beckwith then began staring at Appellant "with anger in his eyes." When Appellant got up from his table, Beckwith approached him and said, "Let's take this outside." Appellant retreated back to his friends' table and told them, "I've got to get out of here." He asked the bartender to call a taxi to take him to the hotel, retrieved his luggage, and went outside to await the arrival of the taxi. Beckwith and Linker followed him outside. Appellant testified that when he saw them approach, "I knew I was in trouble." Beckwith and Linker began shoving Appellant. Beckwith then punched Appellant in his surgically repaired left eye, causing blood to "explode" from the eye. Both assailants "whaled" him, knocking him to the ground and causing him to become temporarily unconscious. When Appellant regained consciousness, Beckwith was on top of him, still beating him with his fists. Appellant's face and body were covered with contusions, abrasions, and blood. He testified, "I felt like I was dying."

Linker pulled Beckwith off Appellant. Appellant struggled to his feet and drew his pistol, initially fumbling it. Linker mocked him, saying, "What are you going to do with that? Look, you're fumbling it." Linker grabbed for the pistol but Appellant was able to shift it to his other hand. Appellant testified that when Linker again grabbed him, he thought, "They are going to kill me. I've got to get him off of me. They are going to get me down on the ground again and they are going to kill me." Appellant fired what he intended to be a warning shot into the ground (this may have been the shot that wounded Beckwith in the leg). His assailants appeared unphased. Appellant fired another round, attempting to wound Linker in the leg. When Linker continued the assault, Appellant fired two more rounds. Apparently, these last three rounds were the ones that that struck Linker. Both Linker and Beckwith then fell to the ground, and the bartender and other bar patrons wrestled Appellant to the ground and disarmed him.

Of course, the Commonwealth's version of these events was different. Beckwith testified that he berated Appellant for attempting to touch Bishop as she walked by his table, and that Appellant invited him outside to discuss the matter. Linker testified that he had been in the restroom and returned to see Appellant and Beckwith go out the door, so he followed them outside. Beckwith testified that when they got outside, Appellant shot Linker and he (Beckwith) attacked Appellant in an attempt to disarm him. Linker testified that he stepped between Beckwith and Appellant who were "having words" and Appellant shot him. The other bar patrons then arrived and assisted Beckwith in subduing Appellant.

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