Appeal from Jefferson Circuit Court; Hon. George B. Ryan, Judge, No. 81-CR-0001
Opinion OF THE COURT BY JUSTICE VANCE
Raymond T. McClellan was convicted of the murder of Gary Stutzenberger; first-degree burglary of an apartment occupied by Stutzenberger and McClellan's wife, Bernadette McClellan; and the kidnapping of Bernadette. He was sentenced to imprisonment for 20 years on the charge of kidnapping, 20 years on the charge of first-degree burglary, and death on the conviction of murder.
On appeal, McClellan raises 50 separate issues for review. Because we are reversing the judgments of conviction, we will review in this opinion those issues which necessitate the reversal, as well as those issues which may recur in a second trial. We will not enlarge the opinion to review issues which we deem to be without merit or which are not likely to arise in another trial.
Raymond McClellan was the fifth husband of Bernadette McClellan. Her third husband was the decedent, Gary Stutzenberger. Raymond met Bernadette in 1980 when she was employed as a waitress in a topless bar in Louisville, Kentucky. Bernadette testified that about a week before Gary was murdered, Raymond threatened her with a knife, and she separated from him and returned to work at the topless bar. There she encountered her former husband, Gary, and eventually moved into his apartment.
Raymond was unsuccessful in his attempts to persuade Bernadette to return to him. Just two days before the homicide, he purchased a rifle. On the day before the homicide his automobile collided with a van driven by Gary, in which Bernadette was a passenger. Raymond followed the van as it drove away, and eventually wound up at a police station where a warrant was taken for Raymond's arrest.
That evening, Raymond rented an apartment in the same building in which Gary and Bernadette were living. In the early morning hours he heard them return home. Armed with his rifle, he went to their apartment, knocked on the door and identified himself as a police officer.
Gary opened the door, but slammed it shut and locked it when he saw Raymond. Raymond then shot the lock off the door, and forced his way into the apartment. When Bernadette emerged unclothed from beneath the bed, Raymond shot and killed Gary, kidnapped Bernadette, and took her from the building. They eventually proceeded to a farmhouse in Indiana where they were surrounded by police, and he was forced to surrender.
SUFFICIENCY OF THE EVIDENCE
The appellant contends that the evidence was insufficient to support the conviction for first-degree burglary for the reason that it failed to prove that he entered or unlawfully remained in the room with intent to commit a crime. He relies upon his testimony that his sole purpose in entering the room was to talk to his wife and to attempt to persuade her to return home with him. He repeatedly testified that he had no thought of harming his wife or the victim or of committing any crime whatsoever when he entered the room.
Criminal intent, of course, can be inferred from the circumstances. There was evidence in this case that appellant had purchased the fatal weapon shortly before the homicide; evidence to indicate that he sat up waiting for the victims to return to the apartment; that when denied entrance to the apartment, he shot the lock off the door and forced his way into the apartment; and within a very brief time shot and killed Stutzenberger.
After viewing the evidence in the light most favorable to the prosecution, we hold that any rational trier of fact could have found beyond a reasonable doubt that appellant entered the room with an intent to commit a crime. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed 2d 560 (1979).
Even though the evidence was sufficient to justify a first-degree burglary verdict, the jury could have believed appellant's testimony that he had no intent to commit a crime when he entered the room. In that case, he would have been guilty of criminal trespass only, and he was entitled to his requested instruction setting out his theory of the case.
K.R.S. 511.020(1) pertains to burglary in the first degree. It provides:
"A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
"(a) Is armed with explosives or a deadly weapon; or
"(b) Causes physical injury to any person who is not a participant in the crime; or
"(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime."
K.R.S. 511.060(1), pertaining to first-degree criminal trespass, provides:
"A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a dwelling."
There is no question in this case but that appellant knowingly entered and unlawfully remained in the victim's apartment. There is also no question but that while therein he was armed with a deadly weapon, used a dangerous instrument against a person not a participant in the crime, and caused physical injury and death of that person.
The question of whether appellant intended to commit a crime when he entered the apartment was a question to be determined by the jury. Unfortunately, there was no instruction to the jury which would permit it to find that appellant entered the apartment unlawfully, but without an intent at that time, to commit a crime. This omission from the instructions was erroneous, and it is crucial in this case because the imposition of the death penalty was predicated upon the aggravating factor that the homicide was committed during the course of a first-degree burglary. Had the jury found appellant guilty of criminal trespass in the first degree rather than burglary in the first degree, the death penalty could not have been imposed.
EXTREME EMOTIONAL DISTURBANCE
Appellant raises several issues relating to "extreme emotional disturbance." He claims the evidence was such that no rational trier of fact could fail to conclude that appellant acted under extreme emotional disturbance for which there was a reasonable explanation or excuse; that the Commonwealth Attorney in his concluding argument misstated the law concerning extreme emotional disturbance at both the guilt and penalty phases of the trial; and that K.R.S. 507.020 and 532.025 are void for vagueness because there is no definition of the term "extreme emotional disturbance."
The General Assembly has provided that a person shall not be convicted of murder for an intentional homicide which is committed while acting under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse. K.R.S. 507.020. The General Assembly did not define what state of mind constitutes "extreme emotional disturbance," and this court has never evolved any precise determination of that term. It was said in Edmonds v. Commonwealth, Ky., 586 S.W.2d 24, 27 (1979) that definition of the term is unnecessary and that, "we know it when we see it."
To say that, "We know it when we see it," overlooks the fact that it is not the court but a jury that must make a factual determination of whether a particular defendant acted under the influence of extreme emotional disturbance. Without some standard or definition a jury is left to speculate in a vacuum as to what circumstances might or might not constitute extreme emotional disturbance. Since the General Assembly did not define the term, it becomes necessary for the court to do so.
We must begin with a distinction between mental disease or illness and emotional disturbance. Insanity is defined as a mental condition which results in a lack of substantial capacity either to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law. K.R.S. 504.060(4). A person who is insane is not responsible for criminal conduct. Insanity absolves one of criminal intent and is therefore a complete defense. K.R.S. 504.020. On the other hand, a mental disease which does not destroy the capacity to appreciate criminality of conduct or to conform one's actions to the requirement of law is simply not a defense at all. It does not relieve one of criminal responsibility. Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977).
Mental illness is defined as substantially impaired capacity to use self-control, judgment, or discretion which can be related to physiological, psychological, or social factors. K.R.S. 504.060(5). Mental illness does not absolve one of criminal responsibility but entitles one so convicted to treatment so long as he remains mentally ill or until the expiration of his sentence. K.R.S. 504.150.
A defendant who intends to introduce evidence of his mental illness or insanity at the time of the offense is required to file written notice of his intention at least 20 days before trial. K.R.S. 504.070.
It is easy in the vernacular to equate insanity, mental disease, and mental illness with emotional disturbance, but in law they are separate and distinct concepts. Extreme emotional disturbance is something different from insanity or mental illness. Wellman v. Commonwealth, Ky., 694 S.W.2d 696 (1985).
In Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978), this court indicated that extreme emotional disturbance was akin to a lesser-degree defense of insanity. Ratliff suffered from schizophrenia - paranoid type and experienced delusions of conspiracies against her. She shot and killed a store clerk whom she believed to be a conspirator against her. It was held that a jury might reasonably believe that she was not legally insane, but was nevertheless emotionally disturbed.
Our holding in Ratliff, supra, was in error. A mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance. As we noted in Wellman v. Commonwealth, supra, an underlying mental disease may be considered by a jury in making its determination of whether a defendant's explanation or excuse for his alleged "extreme emotional disturbance" is reasonable under the circumstances as he believed them to be, but standing alone, evidence which tends to establish insanity or mental illness is not sufficient to establish extreme emotional disturbance. To the extent that Ratliff v. Commonwealth, supra, indicates otherwise, it is expressly overruled.
Extreme emotional disturbance for which there is a reasonable explanation or excuse does not exonerate or relieve one of criminal responsibility. It simply reduces the degree of a homicide from murder to manslaughter. In that respect, it serves the same function as "acting in sudden heat of passion" in pre-penal code times.
There is little doubt that the phrase "extreme emotional disturbance" is a replacement for the old "sudden heat of passion" but is somewhat less limited in its application. The commentary to K.R.S. 507.030 explains that a reasonable explanation of extreme emotional disturbance is not limited to specific acts of provocation by the victim but may relate to any circumstance that could reasonably cause an extreme emotional disturbance. Although its onset may be more gradual than the "flash point" normally associated with sudden heat of passion, nevertheless, the condition must be a temporary disturbance of the emotions as opposed to mental derangement per se.
Extreme emotional disturbance may reasonably be defined as follows: 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 defendant believed them to be.
The evidence in this case was not such that a rational trier of fact would be compelled to conclude that appellant acted under extreme emotional disturbance. The Commonwealth Attorney, in his argument at both the penalty phase and the guilt phase of the trial, compared the term "extreme emotional disturbance" with the former "sudden heat of passion" and stated that extreme emotional disturbance must be the product of specific acts of provocation of the victim and did not apply in this case because there was an ample cooling off period. On another trial, argument should be limited in this regard to whether or not the appellant at the time of the shooting was so inflamed or disturbed that he acted uncontrollably from that fact, rather than from an evil or malicious purpose, and if so, whether there was, in fact, a reasonable explanation or excuse for such an emotional state.
The jury should be instructed as to the definition of the state of mind which constitutes an extreme emotional disturbance.
K.R.S. 509.040 provides that a person is guilty of kidnapping when he unlawfully restrains another person and when his intent is to use him as a shield or hostage or to inflict bodily injury or to terrorize the victim or another. The appellant claims there was no evidence of his intent to terrorize his wife, inflict injury upon her, or to hold her as a hostage, and that, in any event, any acts of terrorism or holding hostage occurred in Indiana rather than Kentucky. It is without question that appellant unlawfully restrained Bernadette in Jefferson County, Kentucky. The question here is not whether appellant actually held her as a hostage or terrorized her, but whether he intended to do so at the time he unlawfully restrained her. The fact that he did subsequently hold her as a hostage, albeit in Indiana, is a circumstance going to the issue of his intent at the time of the abduction. Bernadette testified that he dragged her down the stairs, that she did not want to go with him, that she did so only because she was frightened, and that subsequently, in Indiana, he pointed a gun at her and held her as a hostage when he was besieged by the police.
We hold that the evidence was sufficient to permit a jury to find beyond a reasonable doubt that appellant intended at the time of the abduction both to terrorize Bernadette and to hold her as a hostage.
The court also instructed the jury on the offense of unlawful imprisonment in the first degree, but refused to instruct upon the offense of unlawful imprisonment in the second degree.
K.R.S. 509.020(1) provides:
"A person is guilty of unlawful imprisonment in the first degree when he knowingly and unlawfully restrains another person under circumstances which expose that person to a risk of serious physical injury."
K.R.S. 509.030(1) provides:
"A person is guilty of unlawful imprisonment in the second degree when he knowingly and unlawfully restrains another person."
The appellant maintained throughout the trial that his acts were motivated out of love, and concern for his wife and her child and in an attempt to preserve the family relationship. The evidence that appellant unlawfully restrained his wife with the intent to terrorize her or to hold her as a hostage was not so overwhelming as to preclude a jury finding of guilt on the lesser included offense of unlawful imprisonment in the second degree.
On another trial, if the evidence on unlawful restraint is the same, the jury should be instructed on both kidnapping and unlawful ...