Meredith v. Commonwealth

Justice JOHNSTONE,

concurring in part and dissenting in part.

Although I concur with that part of the Majority’s opinion affirming Appellant’s conviction for complicity to commit first-degree robbery, I respectfully dissent as to the conviction for complicity to commit murder.

Because there is no evidence that Crain had any prior intent of shooting Smith, and in fact did so only after the two had an altercation, the intent to cause Smith’s death cannot be imputed to Appellant. Thus, the complicity to commit murder charge must be pursuant to KRS 502.020(2), the “complicity to the result” theory. As noted in Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky.2000), cert. denied, 534 U.S. 928, 122 S.Ct. 289, 151 L.Ed.2d 213 (2001):

[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 *507principal’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. KRS 502.020 (1974 Official Commentary); R. Lawson and W. Fortune, Kentucky Criminal Law § 3 — 3(b)(3), at 106, § 3-3(c)(2), at 114 (Lexis 1998).

Nonetheless, the trial court’s instruction set forth both theories of liability:

You will find the defendant, RICHARD ALLEN MEREDITH, guilty of Murder (Complicity), under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
A. That in this county on or about the 22nd day of November, 2000, acting alone or in complicity, he caused the shooting death of Harold Smith;
AND
B. That in so doing:
(1) He intentionally caused the death of Harold Smith;
OR
(2)(a) He voluntarily participated in the commission of a theft, or attempted theft, knowing that another person would be threatened with a deadly weapon during the course of that theft;
AND
(b) During the course of the theft or attempted theft, and as a result thereof, Harold Smith was shot and killed;
AND
(c) By participating in the theft, this defendant was wantonly engaging in conduct which created a grave risk of death or serious physical injury to another and thereby caused the death of Harold Smith under circumstances manifesting an extreme indifference to the value of human life.

Notably, even the second theory of liability, i.e. complicity to the result, required the jury to believe that Appellant participated in the commission of a theft knowing that Smith “would be threatened with a deadly weapon.” Thus, by virtue of the trial court’s instruction, the Commonwealth was required to prove that Appellant, acting alone or in complicity with Crain, either intentionally caused the death of Smith, or was aware that Crain would be armed with a deadly weapon during the course of the theft. There is no evidence in the record to support either theory.

Citing Bennett v. Commonwealth, 978 S.W.2d 322 (Ky.1998) and Kruse v. Commonwealth, 704 S.W.2d 192 (Ky.1986), the Majority opines that Appellant’s culpability in Smith’s death can be determined from the wantonness evidenced by his participation in the underlying robbery. However, I find the Majority’s reliance on Bennett and Kruse misplaced as both cases concerned defendants who actively participated in all aspects of the respective crimes and had specific knowledge that the other participant possessed a weapon. In fact, the defendant in Bennett supplied the weapon that his cohort used to kill the victim. 978 S.W.2d at 324. In the instant case, while the Commonwealth makes reference to several witnesses having knowledge that Crain owned a gun, at no point is it asserted that Appellant knew Crain owned a gun, much less that he was armed at the time of the robbery.

The Commentary to § 2.061 of the Model Penal Code provides:

*508[Complicity in conduct causing a particular criminal result entails accountability for that result so long as the accomplice is personally culpable with respect to the result to the extent demanded by the definition of the crime. Thus, if the accomplice recklessly endangers life by rendering assistance to another, he can be convicted of manslaughter if a death results, even though the principal actor’s liability is at a different level.

Model Penal Code Pt. I § 2.06 Comment, at 321 (1985). Because Appellant was charged with complicity to commit murder, the jury had to find that he either acted intentionally with respect to Smith’s death or acted under circumstances manifesting an extreme indifference to human life:

[T]he conduct in question must have involved a substantial and unjustifiable risk of death to human life; the defendant, in causing the death in question, must have consciously disregarded that risk, and his disregard must have constituted “a gross deviation from the standard of conduct that a reasonable person would [have observed] in the situation.” Taken together, these three elements constitute the culpable mental state defined in KRS 501.020 as “wantonness,” and without more, will suffice for a conviction of manslaughter in the second degree. If accompanied by a fourth element, i.e., “circumstances manifesting extreme indifference to human life,” they are sufficient for a conviction of murder.

KRS 507.020, Commentary (1974).

The evidence at trial that Appellant provided Crain with transportation and a cell phone was certainly sufficient to support his conviction for complicity to commit first-degree robbery, and would likely have constituted the “wantonness” sufficient for a manslaughter conviction. However, in the absence of any evidence that Appellant was aware Crain possessed a deadly weapon at the time of the robbery, I do not believe that Appellant’s conduct rose to a level manifesting an extreme indifference to the value of human life so as to sustain a conviction for murder. Brown v. Commonwealth, 975 S.W.2d 922 (Ky.1998); Johnson v. Commonwealth, 885 S.W.2d 951 (Ky.1994).

Accordingly, I would reverse Appellant’s conviction for complicity to commit murder.

LAMBERT, C.J., joins this opinion concurring in part and dissenting in part.

. "KRS 502.020(2) is modeled after what became Section 2.06(4) of the Model Penal *508Code.” Tharp, supra, at 365.