Released for Publication October 23, 2014.
[Copyrighted Material Omitted]
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ON APPEAL FROM BUTLER CIRCUIT COURT. HONORABLE RONNIE C. DORTCH, JUDGE. NO. 10-CR-00110.
COUNSEL FOR APPELLANT: Brandon Neil Jewell, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE ABRAMSON. Minton, C.J.; Cunningham, Keller, and Scott, JJ., concur. Noble, J., concurs in part and dissents in part by separate opinion in which Venters, J., joins. Venters, J., concurs in part and dissents in part by separate opinion in which Noble, J., joins.
Nickolas Staples appeals as of right from a Judgment of the Butler Circuit Court convicting him of first-degree manslaughter (Kentucky Revised Statute (KRS) 507.030) and first-degree criminal abuse (KRS 508.100) and sentencing him as a second-degree persistent felon (KRS 532.080) to a maximum term of twenty-five years in prison. The Commonwealth accused Staples of having caused, either alone or in conjunction with his girlfriend, Brittany Garcia, serious physical injury to and ultimately the death of Garcia's five-month old daughter, Angel Tucker. Garcia was similarly charged, and, following their joint trial, was convicted along with Staples of first-degree manslaughter and first-degree abuse. Because Staples, who lived with Garcia and Angel and who regularly cared for Angel, was not the child's legal custodian and had not attained in loco parentis status, he insists that he had no legal duty to intervene and prevent Garcia from either seriously injuring or killing her child. If this is correct, any criminal abuse or complicity to manslaughter conviction based on a legal duty owed by Staples would be unsustainable as a matter of law. However, as explained in detail below, we conclude that the Kentucky General Assembly deliberately chose the words " actual custody" for the criminal abuse statutes, and that actual custodians include those adults, like Staples, who co-habit with another adult and that person's minor child and who share substantial responsibilities with the parent for the child's day-to-day necessities such as food, shelter, and care. While not legal custody, this type of relationship constitutes actual custody and gives rise to a duty to protect the child under the Kentucky Penal Code. Moreover, as the traditional household of two biological parents residing with their minor children becomes increasingly less common, imposition of criminal responsibility for breach of a duty of care by an " actual custodian" is not only entirely logical but the plain intent of our legislators.
Turning to Staples's contentions on appeal, he maintains that there was insufficient evidence of his guilt to justify the submission of either charge to the jury. He also contends that (1) improper jury instructions, (2) improper remarks by the Commonwealth's Attorney during closing argument, (3) the admission into evidence of autopsy photographs, (4) the admission into evidence of statements Garcia made to police investigators, and (5) a misallocation of peremptory juror strikes all rendered his trial unfair and necessitate a retrial.
Convinced that nothing to which Staples objected at trial or raises on appeal, with one exception, amounted to reversible error, we affirm that portion of the Judgment of the Butler Circuit Court convicting Staples of first-degree criminal abuse and sentencing him as a second-degree persistent felony offender. However, we conclude that an unpreserved error in the first-degree manslaughter complicity instruction misstated the required mental state, and being both palpable and manifestly unjust, necessitates a reversal of Staples's manslaughter conviction and a remand for further proceedings on that charge.
The Commonwealth's proof tended to show that in August 2009, Garcia moved with her two-month-old daughter, Angel, into the Morgantown apartment her new boyfriend, Staples, shared with his mother. Near the end of September 2009, the mother, Karen Staples, moved to a new residence, and Staples and Garcia moved to a new, smaller apartment of their own.
About a month later, on November 6, 2009, Garcia's brother's girlfriend, Angela Briana, was helping care for Angel. Briana testified that at one point she moved to pick up Angel, because she was crying and seemed in pain, but Staples stopped her, explaining that he and Garcia were trying to wean the four-month old child from needing to be held so much. Later, after Staples had left her alone with Angel, Briana lifted her clothes to change her and found what she regarded as serious bruising over much of the child's left ribs. Briana testified that when she asked Garcia what had happened Garcia first claimed not to know, but then claimed that a couple of days before she, while carrying Angel, had fallen down some stairs. Concerned, Briana and her boyfriend (Garcia's brother) contacted Angel's father, James Tucker.
Tucker promptly took Garcia and Angel to the Bowling Green Medical Center. There, Angel was examined and x-rayed, but because the bruising on her chest wall and back appeared to be consistent with Garcia's account of a fall down the stairs, the examiner did not oppose Garcia's taking Angel home. Tucker returned Garcia and Angel to Staples's apartment, and from then until Thanksgiving Staples and Garcia continued to live as a couple with Staples providing, according to his own estimate, forty percent of Angel's care.
Tucker testified that Garcia and Angel spent the Thanksgiving holiday, from the day before Thanksgiving until the day after, with him. During that time, he said, Garcia informed him that she had not really fallen down the stairs with Angel and that she did not know how Angel had been injured. The day after Thanksgiving, Garcia returned to Staples's apartment, and the day after that Staples's mother picked up Angel from Tucker's sister's residence, where Garcia had left her, and returned her to Garcia and Staples.
Two days later, on November 30, 2009, Garcia took Angel to the Health Department for an immunization. The nurse who gave the shot testified that she did not examine Angel, but that nothing she observed suggested anything amiss. Karen Staples testified that she spent that evening with her son and Garcia at their apartment. She left at about 7:00 or 8:00 p.m., at which time, she said, Angel appeared to be fine.
Shortly after 6:00 the next morning, on December 1, 2009, paramedics were summoned to the couple's apartment and there found Angel in a state of cardiac and pulmonary arrest. She was taken initially to the Bowling Green Medical Center, where emergency room personnel were able to
restore vital signs. She was then transferred to the Vanderbilt University Children's Hospital in Nashville. Three days later she was removed from life-support and pronounced dead.
The post-mortem examination, which included x-rays made on December 1, revealed that during the last month or two of her life Angel had suffered numerous broken ribs and a broken clavicle. The medical examiner testified that because the broken bones were at different stages of healing, not all of the injuries had happened at the same time. The rib fractures, according to the examiner, appeared on both the November 6 x-rays taken at the Bowling Green Medical Center and the December 1 x-rays, but the clavicle fracture, which also showed signs of healing, appeared only on the latter, and so must have occurred after November 6 and before December 1.
The examination also revealed a bruise on the side of the child's head. Beneath the bruise there had been massive bleeding into and around the brain and around the top of the spinal cord. The medical examiner testified that a consequent lack of oxygen to the brain was the ultimate cause of death, and that the head injury, which would immediately have been symptomatic and probably debilitating, had been caused by severe blunt force trauma, such as violent shaking or someone's slamming the child's head against the floor or a wall.
The investigating detective testified that he conducted a series of interviews with Staples and Garcia soon after Angel was taken to the hospital, and that they gave changing and initially inconsistent accounts regarding how Angel's ribs were injured--from not knowing, to a fall down the stairs (Garcia), or a fall up the stairs (Staples). After the initial interviews and after the couple had had a chance to confer, Garcia's account changed to match that of Staples.
A Butler County grand jury indicted Staples in November 2010, on charges of murder, either as a principal or as an accomplice, and of first-degree criminal abuse. Following his arrest on those charges, Staples was lodged in the Butler County Jail. One of his cellmates at the jail testified that Staples confessed to him that he had hated Angel as the child of another man and that he had been rough with her and had squeezed her around her chest. According to the cellmate, when Staples learned that he, the cellmate, had once been employed as a confidential informant in another county, he warned him not to reveal what he had confessed, since, having one death already on his conscience, he did not want to have another.
The Commonwealth also presented evidence that while incarcerated at the jail Staples had had a number of (recorded) telephone conversations with his mother. The gist of more than one of those calls was Staples's request that his mother visit Garcia and tell her " to keep her mouth shut."
Neither Garcia nor Staples testified at trial, but Staples presented testimony by four other cellmates to the effect that the alleged confession was unlikely given the crowded conditions in the cell where it allegedly took place and the reputation of the Commonwealth's witness as an informant. Otherwise, through cross-examination and through argument, Staples emphasized the circumstantial nature of the Commonwealth's case and urged that the circumstances did not add up to proof that he was guilty of anything. At the conclusion of the four-day trial, the jury acquitted both Staples and Garcia of murder, but, as noted, found them both guilty of the lesser offense of first-degree manslaughter as well as of the offense of first-degree
criminal abuse. Our analysis of Staples's allegations of error begins with his contention that he was entitled to a directed verdict of acquittal.
I. Staples Is Not Entitled To A Directed Verdict.
As Staples concedes, a directed verdict is required if, but only if, the evidence, construed favorably to the Commonwealth, would not permit a reasonable juror to believe the defendant guilty beyond a reasonable doubt. Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013) ( citing Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). Under KRS 507.030(1)(a), " [a] person is guilty of manslaughter in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes the death of such person." The Commonwealth's proof, as summarized above--proof of the child's numerous injuries; proof that the injuries occurred during the period the child was in Staples's care; proof that Garcia, the other principal caretaker, denied having injured her; and proof that Staples admitted having done so--was sufficient to convince a reasonable juror that, having seriously injured Angel on prior occasions, Staples, late November 30 or early December 1, intended to seriously injure her again, but mistook on that occasion the force he was applying and instead of injury caused the child's death.
The evidence of criminal abuse was also sufficient. KRS 508.100(1) provides in pertinent part that " [a] person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby . . . causes serious physical injury . . . to a person twelve (12) years of age or less." " Abuse" here means " the infliction of physical pain, injury, or mental injury, or the deprivation of services by a person which are necessary to maintain the health and welfare of a person." KRS 508.090(1). The evidence that the five-month-old Angel suffered broken ribs while in Staples's care and Staples's confession to his cellmate that he had squeezed the child's chest, could have convinced a reasonable juror that intending, at the very least, to cause the child physical pain, Staples caused her a serious physical injury. Because the evidence thus adequately raised an issue of guilt as to both offenses and met the Benham standard, the trial court did not err when it denied Staples's motion for a directed verdict.
II. The Trial Court Did Not Err By Instructing the Jury to Consider the Commonwealth's Breach-of-Duty Theories of Complicity to Manslaughter and of Criminal Abuse.
Staples next contends that the jury instructions with respect to both manslaughter and abuse included a theory of liability not recognized under Kentucky law--the theory that he, a co-habiting non-parent, owed the child a duty to protect her from her mother's abuse--and, because it cannot be said that the jury did not rely on the invalid theory, the tainted instructions deprived him in both instances of his right to a unanimous verdict. With respect to manslaughter, the jury was instructed that it was to find Staples guilty of that offense if it believed beyond a reasonable doubt either that Staples himself killed Angel while intending to cause her serious physical injury, or that
(1) [I]n this county on or about December 1, 2009, . . . Brittany Garcia killed Angel Tucker by blunt force trauma;
(2) That in so doing, Brittany Garcia did not intend to kill Angel Tucker but intended to cause serious physical injury to Angel Tucker;
(3) That the defendant [Staples] had actual custody of Angel Tucker;
(4) That at the time of Angel Tucker's death, the Defendant was acting wantonly or recklessly with respect to the risk that Brittany Garcia would inflict death or injury upon Angel Tucker and failed to make an effort reasonable under the circumstances to protect Angel Tucker from such harm.
Staples contends that because he did not, as a matter of law, have a duty to protect Angel from harm, this instruction offered the jury an invalid basis for finding him guilty.
The part of the instruction to which Staples objects is based on KRS 502.020, the complicity statute. Under subpart (2)(c) of that statute,
[w]hen causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he: . . . [h]aving a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.
Staples insists that he had no legal duty to prevent Garcia from killing her child, and thus, if the jury believed that Garcia was the killer, he could not lawfully be found complicit in the killing under the theory reflected in the instructions.
Subpart (2)(c) of the complicity statute is in turn based upon KRS 501.030, the statute codifying the actus reas and means rea requirements for criminal liability. That statute provides that
[a] person is not guilty of a criminal offense unless:
(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing;
(2) He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense, except that this requirement does not apply to any offense which imposes absolute liability, as defined in KRS 501.050.
This statute is still as originally enacted in 1974, and the Commentary to it explains that with one slight modification it was intended simply to codify the then-existing law:
The principles contained in this section [section 210 of the Kentucky Penal Code, Final Draft, which became KRS 501.030]
are consistent with existing law. Kentucky presently exempts involuntary acts from criminal liability ( Fain v. Commonwealth, 78 Ky. 183 (1879)); imposes liability upon a failure to perform a legal duty ( Westrup v. Commonwealth, 123 Ky. 95, 93 S.W. 646, 29 Ky.L.Rptr. 519 (Ky. 1906)), and requires a union of act and intention for criminality ( Commonwealth v. Duvall, 220 Ky. 771, 295 S.W. 1047 (Ky. 1927)). Section 210 codifies these principles and makes one addition, the reason for which is obvious. Before a person can be held liable for failure to perform a legal duty, he must have been physically capable of performance.
Kentucky Penal Code, Final Draft, p. 18 (Nov. 1971).
Under the preexisting law, the sources of legal duties the breach of which could give rise to criminal liability included statutes expressly creating such duties as well as certain relationships in which one person or entity is deemed to have undertaken to act on another's behalf. E.g., Westrup v. Commonwealth, 93 S.W. at 646 (recognizing a husband's duty to provide medical assistance for his wife, but ruling that the duty had not been breached where the wife made a responsible decision to forego the attendance of a physician during childbirth); Lane v. Commonwealth, 956 S.W.2d 874, 876, 44 7 Ky. L. Summary 18 (Ky. 1997) (Cooper, J., concurring) (discussing the State's duty to provide care and protection for persons in its custody).
The parent-child relationship is one such relationship giving rise to legal duties prior to the adoption of the Penal Code. Parents, under the common law, could be held criminally responsible for injurious failures to protect and nurture and to provide medical assistance for their minor children. Gibson v. Commonwealth, 106 Ky. 360, 50 S.W. 532, 20 Ky.L.Rptr. 1908 (Ky. 1899) (upholding manslaughter conviction of mother who abandoned her two-month old child on a neighbor's porch where the baby died from exposure); Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710 (Va. 1965) (collecting cases recognizing parents' criminal liability); John D. Perovich, Homicide by Withholding Food, Clothing, or Shelter, 61 A.L.R. 3RD 1207 (updated weekly); State v. Neumann, 2013 WI 58, 348 Wis.2d 455, 832 N.W.2d 560 (Wis. 2013) (upholding reckless homicide conviction of parents who failed for religious reasons to provide medical attention to child); Baruch Gitlin, Parents' Criminal Liability for Failure to Provide Medical Attention to Their Children, 118 A.L.R. 5TH 253 (updated weekly).
The Kentucky Penal Code, as noted, incorporates the parents' common law duties and has extended them. In Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013), this Court held that the conjunction of a mother's common-law and statutory duties of nurture and support subjected
her to criminal liability for first-degree assault based on the injurious neglect of her disabled adult son. Similarly, in Lane v. Commonwealth, 956 S.W.2d at 874 (assault) and Tharp v. Commonwealth, 40 S.W.3d 356 (Ky. 2000) (complicity to murder), this Court held that under Penal Code and other statutory provisions enacted for the protection of children, particularly the criminal abuse statutes, a parent's duty to protect his or her child from harm now includes the duty to protect the child from abuse by the parent's spouse or domestic companion. See also, People v. Stanciel, 153 Ill.2d 218, 606 N.E.2d 1201, 180 Ill.Dec. 124 (Ill. 1992) (upholding the murder by complicity convictions of mothers who permitted their children to be killed by domestic partners).
The Commonwealth maintains that a similar conjunction of the common law and the Penal Code gives rise to a duty to protect on the part of someone, such as Staples, who cohabits with a parent and who assumes a substantially parent-like role with respect to that parent's child. The Penal Code provision the Commonwealth invokes is the criminal abuse statute, KRS 508.100, which, as noted above, provides in part (emphasis supplied) that a person is guilty of first-degree criminal abuse if he " permits another person [twelve years of age or less] of whom he has actual custody to be abused and thereby . . . [c]auses [that person] serious physical injury." The General Assembly has not defined " actual custody," but in the Commonwealth's view the term embraces the relationship Staples had with Angel, and thus under the statute Staples had a duty not to permit Angel to be abused by anyone, including Garcia. The common law bears out this reading, the Commonwealth asserts, in its recognition that legal duties can arise from " special relationships," such as, the Commonwealth insists, the relationship a non-parent may, and in this case did, establish with his cohabiting partner's child. Regardless of how the common law could be construed to apply in circumstances such as these, we have no doubt that under the criminal abuse statute Staples owed Angel a duty of protection.
The general rule under the common law is that a nonparent has no legal duty to support or care for his or her domestic partner's child. People v. Myers, 201 A.D.2d 855, 608 N.Y.S.2d 544, 545 (App. Div. 1994) (" A person who has no familial relationship to a child ordinarily has no legal duty to provide for it." ). Even a step-father, under the common law, generally " is under no legal obligation to support the child of his wife by a former husband." Brummitt v. Commonwealth, 357 S.W.2d 37, 39 (Ky. 1962). See also, Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (Neb. 2000). The common law recognizes an exception to this general rule, however, for nonparents who stand in loco parentis (in the place of a parent) with respect to the child. Brummitt, 357 S.W.2d at 39. Such a relationship can be either temporary or permanent, and the law makes provision for that distinction.
Frequently, of course, parents must temporarily entrust the care of their children to others--school officials, relatives, baby-sitters, for example--and those persons, assuming only a limited responsibility for the child, can, but only to that limited extent, be subject to liability for injuries to the child. See, e.g., Cashen v. Riney, 239 Ky. 779, 40 S.W.2d 339 (1931) (holding that couple stood in loco parentis with respect to fourteen-year-old live-in housekeeper and so owed her a legal duty of protection against seduction by their ...