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RENDERED: AUGUST 25, 2016
NOT TO BE PUBLISHED
oi5ujarttut Court of TcAtufutitv
2015-SC-000357-MR
JOEL DAVID SEARCY APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE THOMAS L CLARK, JUDGE
NO. 13-CR-1096
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit court jury convicted Joel David Searcy of second-degree
manslaughter, first-degree robbery, and multiple counts of unlawful
imprisonment, for all of which he was sentenced to twenty-five years'
imprisonment.
In this matter-of-right appeal from the resulting judgment', Searcy does
not challenge the validity of the manslaughter and unlawful imprisonment
convictions. He challenges only his first-degree robbery conviction. He argues
that the trial court erred by failing to direct a verdict on the robbery charge or,
alternatively, that the trial court erred by failing to instruct the jury on criminal
attempt to commit robbery as a lesser-included offense.
I Ky. Const. § 110(2)(b).
We hold that the trial court did not err in declining to grant a directed
verdict on the robbery charge or in failing to instruct the jury on attempted
robbery. So we affirm the judgment below.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Searcy contends that a paranoid-delusional episode brought on by his
active methamphetamine addiction explains his conduct on the day in
question. On that day, Searcy drove his childhood friend, Mahailey Harrod, and
her children to a doctor's appointment. On the way back home, they drove past
the mobile-home park where Searcy worked, and he became paranoid after
seeing people there. He believed people were out to get him, and his goal then
became to not stop the car. When forced to stop at an intersection, Searcy
snapped. He believed a man on a moped behind him reached for a gun to shoot
him. He accelerated and rammed a truck in front of him. The terrified Harrod
demanded that he stop the car so that she and her children could exit. When
he stopped, he took off running into the road, waving his arms and calling for
help. An elderly man, later identified as Donald Cooke, stopped his car and
Searcy got in.
The two took off down the road, with Cooke driving and Searcy crouching
in the passenger seat to avoid detection. After Cooke turned onto the same
street where Searcy's former heroin dealer lived, Searcy became increasingly
paranoid. He grabbed the steering wheel, and a struggle ensued. Cooke's car
ended up in a nearby parking lot, with Searcy and Cooke fighting for control of
the car. Searcy threw Cooke from the driver's side door, tossed Cooke's oxygen
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tank tossed on top of him, and launched his small dog through the car window.
Some eyewitnesses approached the scene, and Searcy jumped out of the car
and ran down the street. He was apprehended moments later.
Cooke was 82 years old at the time of the scuffle. On arrival at the
hospital, his admitting physician found Cooke had a punctured lung,
numerous bruises, and was in respiratory failure. He was sedated and placed
on a ventilator, but he never regained consciousness. Cooke died a little over a
week after he was admitted to the hospital. An autopsy revealed that the cause
of death was subdural hematoma and multisystem organ failure as a result of
blunt impacts to the trunk and extremities, rib fractures, and pneumothorax.
Searcy was indicted on one count of capital murder, one count of robbery
and four counts of first-degree unlawful imprisonment. He was later convicted
on one count of second-degree manslaughter, one count of first-degree robbery,
and five counts of second-degree unlawful imprisonment. He was sentenced to
a total term of twenty-five years' imprisonment.
II. ANALYSIS.
A. Searcy was not Entitled to a Directed Verdict.
Searcy contends that the trial court should have granted a directed
verdict in his favor for the first-degree robbery charge. He claims that his
actions were out of a legitimate fear for his life—no matter the fact that they
were simply methamphetamine-induced paranoia—and that he did not wield
the criminal intent permanently to deprive Cooke of his automobile. Searcy
3
points to his escape on foot shortly after Cooke was ejected from the vehicle as
proof that he did not intend to commit a theft at all.
The Due Process Clause of the Fourteenth Amendment "protects the
accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged." 2 On
denial of a directed verdict, our analysis is whether, under the evidence as a
whole, it would be clearly unreasonable for the jury to find Searcy guilty. 3 We
construe all evidence below in a light most favorable to the Commonwealth. 4
Underthisaofvw,erctainSywsoeldta
directed verdict.
The Kentucky Penal Code contemplates a variety of forms of criminal
activity that may qualify as first-degree robbery. The statute defines that
crimes as follows:
(1) A person is guilty of robbery in the first degree when, in the
course of committing theft, he uses or threatens the immediate
use of physical force upon another person with intent to
accomplish the theft and when he:
a. Causes physical injury to any person who is not a
participant in the crime;
b. Is armed with a deadly weapon; or
c. Uses or threatens the immediate use of a dangerous
instrument upon any person who is not a participant of
the crime. 5
2 In re Winship, 397 U.S. 358, 364 (1970).
3 See Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001). See also
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
4 See Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).
5 KRS 515.020.
4
The first-degree robbery statute thus contains several elements, each of
which must be met before a defendant may be convicted of the crime. But of
those elements, Searcy only questions his subjective intent to commit a theft of
Cooke's property. He alleges that he did not intend necessarily to steal the
vehicle, evidenced by his decision to flee the scene on foot shortly after Cooke
was ejected from the car. He additionally hypothesizes that he could not have
the requisite intent to steal based on his drug-induced paranoia and the
resulting fear he had for his own life at the time of the incident.
Searcy offers no evidence in support of his claim that he did not intend to
take Cooke's vehicle. Quite the opposite, there is ample evidence in the record
to support the inference that he in fact did intend to commit a theft. The
Commonwealth appropriately points to Searcy's statements to a law-
enforcement officer that he was going to get in the driver's seat and drive
Cooke's vehicle after he was pushed out of the car. A witness testified that
Cooke said Searcy was trying to take his car. Searcy had Cooke's keys in his
possession when he was apprehended. We think there is ample evidence for a
reasonable jury to conclude Searcy was guilty of first-degree robbery.
We are unprepared today to allow a defendant's drug-fueled paranoia to
insulate him from the realities of his actions. It is beyond dispute Searcy and
Cooke were engaged in a struggle for control of Cooke's vehicle. Searcy used
physical force to gain control of the car. It matters not why he felt he needed to
control the car—whether he delusionally feared for his life or if he simply
wished to have Cooke's car for his own. What does matter is that he
5
intentionally engaged in a course of physical actions that culminated in him
forcefully expelling Cooke from the vehicle (and ultimately killing him), so
Searcy could presumably take the car for his own use—whatever his subjective
goals may have been. We have no trouble agreeing that any reasonable jury
could convict Searcy under these circumstances. So we accordingly conclude
that he was not entitled to a directed-verdict for this offense.
B. Searcy Was Not Entitled to an Attempted Robbery Instruction.
Searcy next argues that the trial court erroneously refused to instruct
the jury on attempted robbery as a lesser-included offense of first-degree
robbery. At trial, Searcy's counsel tendered an instruction for first-degree
criminal attempt to commit a robbery. The trial court rejected this instruction
and included criminal-attempt language in its instruction for first-degree
robbery. Searcy contends there was ample evidence for a jury to find he was
guilty only of attempting to steal Cooke's vehicle by concluding that he failed to
actually steal the car. We disagree.
Under Kentucky Rules of Criminal Procedure (RCr) 9.54, a trial court
must instruct the jury on the whole law of the case. Likewise, in Manning v.
Commonwealth, we held that the trial court must instruct on every theory of
the case reasonably deducible from the evidence. 6 And most recently, we held
that "Each party to an action is entitled to an instruction upon his theory of
the case if there is evidence to sustain it." 7 On appellate review of a trial court's
6 See 23 S.W.3d 610, 614 (Ky. 2000).
7 Sargent v. Schaffer, 467 S.W.3d 198, 203 (Ky. 2015).
6
refusal to give an instruction we "must ask ourselves, construing the evidence
favorably to the proponent of the instruction, whether the evidence would
permit a reasonable juror to make the finding the instruction authorizes." 8 The
trial court's decision is reviewed for an abuse of discretion, reversing only upon
a finding that the court's ruling was "arbitrary, unreasonable, unfair, or
unsupported by sound legal principles." 9
The Kentucky Penal Code contemplates the possibility of criminal
attempts to perform acts designated criminal within the code. In Kentucky, one
is guilty of an attempted crime when, consistent with the kind of intent
otherwise required for the commission of the crime, he "intentionally does or
omits to do anything which, under the circumstances and he believes them to
be, is a substantial step in the course of conduct planned to culminate in his
commission of the crime." 19
The Commonwealth's primary justification for the trial court's ruling on
this issue is that it used a model instruction for first-degree robbery from
Cooper's treatise on model juror instructions, and that model instruction
includes criminal-attempt language to instruct on this crime itself. The
instruction given to the jury in the instant case, is stated as follows:
First-Degree Robbery
8 Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013).
9 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
10 KRS 506.010(1)(b).
7
You will find the Defendant guilty of First-Degree Robbery
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 August 1, 2013, and before the
finding of the Indictment herein, he stole or attempted to steal
a car from Donald Cooke; AND
B. That in the course of doing so and with intent to accomplish the
theft, he caused a physical injury to Donald Cooke by using
physical force.
It is therefore the Commonwealth's position that Searcy's theory of attempted
robbery was incorporated in the larger first-degree robbery instruction and
supported the possibility that the jury may conclude that he only attempted to
steal Cooke's vehicle to support a conviction for first-degree robbery. And sure
enough, under Kentucky law one may in fact be guilty of first-degree robbery
without succeeding in forceful theft—the criminal intent to permanently
deprive another of their property is sufficient. 11
As we discussed above, we are comfortable with the notion that a
reasonable jury could determine beyond a reasonable doubt that Searcy was
guilty of first-degree robbery despite the fact that he did not physically drive
away with Cooke's vehicle. Likewise, we are confident that the trial court did
not abuse its discretion in refusing him an instruction for attempted robbery.
Searcy used physical force against Cooke to seize control of the vehicle—he
intended to deprive Cooke of the use of his automobile and in fact
11 See Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010) ("A defendant who
uses physical force with the requisite intent is guilty of robbery regardless of whether
any of the property intended to be taken is in fact taken.") (referring to Kirkland v.
Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001)).
8
accomplished that goal, finding himself in possession of the keys to the vehicle
at the end of the altercation. Because there is ample evidence to conclude that
Searcy actually completed the crime, the trial court acted reasonably in
deducing that criminal attempt is unavailable under these circumstances.
Because we conclude that Searcy was not entitled to a criminal-attempt
instruction, we hold that the trial court did not abuse its discretion by refusing
to instruct the jury on that lesser offense.
III. CONCLUSION.
For the foregoing reasons, we affirm the trial court's judgment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
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Joel David Searcy v. Commonwealth of Kentucky
Combined Opinion